Anderson confirmed as district court judge

S. Thomas Anderson was confirmed yesterday by the U.S. Senate as the newest U.S. District Court judge for west Tennessee. Anderson, who replaces Judge James D. Todd of Jackson, was confirmed on a unanimous voice vote. Nominated in 2007, he has been serving as a U.S. magistrate judge since 2003. The Memphis Daily News has the story:

http://www.memphisdailynews.com/editorial/Article.aspx?id=36553

TODAY'S OPINIONS
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MANHATTAN, INC., D/B/A NEW YORK NEW YORK v. SHELBY COUNTY, TENNESSEE, CITY OF MEMPHIS, AND MEMPHIS-SHELBY COUNTY OFFICE OF CONSTRUCTION CODE ENFORCEMENT
Second CORRECTION on page 1 and 2


Court: TCA

Attorneys:

Brian Kuhn, Shelby County Attorney, Robert B. Rolwing, Assistant County Attorney, and J. Carter S. Gray, Assistant County Attorney, for the appellant, Shelby County, Tennessee.

Elbert Jefferson, Jr., Memphis City Attorney, J. Michael Fletcher, Deputy City Attorney, and Roane Waring, Assistant Memphis City Attorney, for the appellant, City of Memphis.

J. Michael Murray, Cleveland, Tennessee, and Rex Brasher, Memphis Tennessee, for the appellee, Manhattan, Inc., d/b/a New York New York.

Judge: KIRBY

This is a petition for a writ of mandamus. The plaintiff purchased a vacant nightclub and sought to reopen it as a topless club. To this end, the plaintiff nightclub owner filed an application for a beer permit and a compensated dance permit from the city beer board, and for a certificate of occupancy with the local construction code enforcement office. After protracted litigation, the nightclub owner obtained the necessary beer and compensated dance permits. Subsequently, the construction code office issued a certificate of occupancy to the nightclub owner, but later sought to restrict it to prohibit sexually-oriented entertainment. This was unsuccessful, so the construction code enforcement office revoked the certificate. The nightclub owner then filed the instant petition for a writ of mandamus against the county and the construction code enforcement office, asking the trial court to compel the construction code office to issue an unrestricted certificate of occupancy. The defendants argued, inter alia, that the plaintiff's intended use for adult entertainment was not 'grandfathered" because the plaintiff had abandoned the nightclub while seeking the required permits. After a bench trial, the trial court held in favor of the nightclub owner and granted the writ of mandamus. The defendants now appeal. We affirm, finding that the trial court did not err in finding that the nightclub owner's business use was lawful, and that the nightclub owner did not abandon the property during the time it was involved in litigation over the beer permit.

http://www.tba2.org/tba_files/TCA/2008/manhattan_corr_041108.pdf


ANDREW S. PACK ET AL. v. KERRY W. ROSS, M.D., ET AL.

Court: TCA

Attorneys:

Anna Minor Grizzle and David Alan King, Nashville, Tennessee, for the appellant, Vanderbilt University.

Lawrence H. Hart and Douglas S. Johnston, Jr., Nashville, Tennessee, for the appellees, Andrew S. Pack, Amie M. Pack, and Andrew M. Pack.

Mary Ellen Morris and Noel F. Stahl, Nashville, Tennessee, for the appellees, Kerry W. Ross, M.D., and Dickson Medical Associates, P.C.

Judge: BENNETT

Defendant Dickson Medical Associates ("DMA") asserts that Tenn. Code Ann. section 20-4-101(b) localizes venue in Dickson County for the plaintiffs' medical malpractice action against DMA. The trial court in Davidson County agreed and transferred the entire case, including claims against defendants who do not reside in Dickson County, to the circuit court in Dickson County pursuant to Tenn. Code Ann. section 16-1-116. Defendant Vanderbilt applied for a Rule 9 appeal which the Court of Appeals granted. Vanderbilt argues that Tenn. Code Ann. section 20-4-101(b) is not jurisdictional and the co-defendants waived any objection to venue in Davidson County; and, alternatively, even if the statute is jurisdictional as to Dickson Medical Associates, it does not require that the action against the other defendants be transferred. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2008/packa_041108.pdf


BARRY D. SMITH v. TAMARA YVETTE SMITH

Court: TCA

Attorneys:

Karla C. Hewitt, Nashville, Tennessee, (on appeal) for the appellant, Tamara Y. Smith.

Robert G. Ingrum, Gallatin, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Barry D. Smith.

Judge: KOCH

This appeal involves a dispute regarding the residential schedule for a twelve-year-old child. In the divorce proceeding filed in the Chancery Court for Sumner County, the trial court, at the parties' request, appointed a psychologist to examine the parties and their child and to report his findings and conclusions to the court and the parties. After the psychologist completed and filed his reports, the trial court and the parties used them to fashion interim visitation orders. Despite the earlier use of the reports, the mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the psychologist. The trial court overruled the objection. After receiving the testimony of the parties and their child, the court designated the father as the primary residential parent and fashioned a residential schedule accordingly. On this appeal, the mother asserts that the trial court erred by (1) admitting and considering the psychologist's report, (2) designating the father as the primary residential parent, and (3) declining to award her attorney's fees. We have determined that the wife waived her opportunity to object to the introduction of the psychologist's reports. We have also determined that the evidence presented at the trial is, by itself, sufficient to support the trial court's designation of the father as the primary residential parent and that the trial court did not err by denying the mother's request for attorney's fees.

http://www.tba2.org/tba_files/TCA/2008/smithb_041108.pdf

SCOTT dissenting
http://www.tba2.org/tba_files/TCA/2008/smithb_Dis_041108.pdf


STATE OF TENNESSEE v. QUINCY BRYAN BANKS

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the Appellant, Quincy Bryan Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Victor S. Johnson III, District Attorney General; Dan Hamm and Sharon Reddick, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Quincy Bryan Banks, was convicted by a Davidson County jury of two counts of aggravated rape and one count of especially aggravated kidnapping. For these Class A felony convictions, Banks received concurrent twenty-three-year sentences for each aggravated rape conviction, to be served consecutively to a twenty-three-year sentence for especially aggravated kidnapping. On appeal, Banks challenges his convictions and resulting sentences, specifically asserting: (1) that the evidence is insufficient to support each of his three convictions and that the conviction for especially aggravated kidnapping violates the due process holding of State v. Anthony; and (2) that the aggregate sentence of forty-six years is excessive based upon: (a) misapplication of enhancing factors with regard to the length of the respective sentences; and (b) the erroneous imposition of consecutive sentences. After review, we conclude that Banks' challenges to his convictions are without merit. Accordingly, the convictions are affirmed. With regard to sentencing, however, we conclude that because Banks was sentenced under provisions of the June 7, 2005 sentencing amendments for crimes committed in November 2004, without a waiver of his ex post facto protections as required by statute, remand for a new sentencing hearing is required. Furthermore, because the sentencing record fails to demonstrate the requisite considerations for the imposition of consecutive sentencing, the case is also remanded for reconsideration of that issue and for entry of corrected judgment forms in accordance with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/banksq_041108.pdf


TERRY D. BREWER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Terry D. Brewer, Pro Se, Tiptonville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and David H. Findley, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Petitioner, Terry D. Brewer, appeals the Lake County Circuit Court's summary dismissal of his petition for the writ of habeas corpus. On appeal, Brewer argues that the indictment under which he was charged was defective, and, as a result, the Henderson County Circuit Court was without subject matter jurisdiction to enter judgments of conviction and resulting sentence of forty-five years. As such, Brewer asserts that his convictions for aggravated rape, aggravated sexual battery, and incest are void. After review, we conclude that the alleged defect is non-jurisdictional in nature and, because it was not raised prior to trial, it is waived. See Tenn. R. Crim. P. 12(f). Accordingly, summary dismissal is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/brewert_041108.pdf


DERRICK M. CAREY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Derrick M. Carey, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, and Ron Davis, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Derrick M. Carey, appeals the Hickman County Circuit Court's dismissal of his petition for writ of habeas corpus. In that petition, Petitioner sought a writ of habeas corpus to release him from his sentences for first degree murder and especially aggravated robbery. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition because Petitioner did not demonstrate that his convictions were void. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/careyd_041108.pdf


STATE OF TENNESSEE v. CHRISTOPHER CARNEY and ANTHONY MITCHELL

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Garry G. Brown, District Attorney General; Jerald Campbell, Assistant District Attorney General; Matthew Hooper, Assistant District Attorney General; and Larry Hardister, Assistant District Attorney General, for the appellant, the State of Tennessee.

Bob C. Hooper, Brownsville, Tennessee, for the appellee, Christopher Carney and for the appellee, Anthony Mitchell.

Judge: WOODALL

Defendant Christopher Carney and Defendant Anthony Mitchell were each indicted for the sale and delivery of cocaine, a Schedule II drug. In both cases, the trial court dismissed the indictments, and the State now appeals. The cases were consolidated for purposes of appeal. After a thorough review, we reverse the trial court's dismissal of the indictments as to each Defendant and remand to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCCA/2008/carneyc_041108.pdf

WITT concurring
http://www.tba2.org/tba_files/TCCA/2008/carneyc_CON_041108.pdf


STATE OF TENNESSEE v. TRACEY C. CLARK

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; Ron Davis, District Attorney General; and Chris Vernon, Assistant District Attorney, for the appellant, State of Tennessee.

F. Shayne Brasfield, Franklin, Tennessee, for the appellee, Tracy Clark.

Judge: SMITH

Appellee, Tracy C. Clark, was indicted by the Williamson County Grand Jury for possession of a weapon on school grounds. Appellee filed a motion to dismiss the indictment based on a claim of self-defense, averring that the facts would not support a conviction for the offense. The trial court dismissed the indictment after conducting a pre-trial evidentiary hearing and determining that Appellee could not be convicted because he acted in self-defense. The State filed an untimely notice of appeal. This Court, in the interest of justice, accepted the late-filed notice of appeal. Because we determine that the trial court improperly conducted a pre-trial evidentiary hearing on the motion to dismiss which essentially involved resolution of the question of Appellee's guilt or innocence, we reverse the trial court's ruling and remand the case for reinstatement of the indictment.

http://www.tba2.org/tba_files/TCCA/2008/clarkt_041108.pdf

WOODALL concurring
http://www.tba2.org/tba_files/TCCA/2008/clarkt_CON_041108.pdf


JOHN GRIDER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

M. Wallace Coleman, Lawrenceburg, Tennessee, for the appellant, John Grider.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; T. Michel Bottoms, District Attorney General; J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In August 2004, the petitioner, John Grider, entered a "best interest" guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), to one count of second degree murder, a Class A felony. The trial court sentenced the petitioner to twenty years in the Department of Correction. In June 2005, the petitioner filed a petition for post-conviction relief. Following a January 2006 hearing, the post-conviction court denied the petition. The petitioner appeals, alleging that he received the ineffective assistance of counsel in that counsel failed to adequately communicate with him during the time leading to his plea and failed to file a motion to suppress his statements to police. After reviewing the record, we conclude that petitioner did not receive ineffective assistance of counsel and therefore affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/griderj_041108.pdf


STATE OF TENNESSEE v. ALEXANDER GUZMAN-CHAVEZ

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the Appellant, Alexander Guzman-Chavez.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Sarah Davis, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: SMITH

Appellant, Alexander Guzman-Chavez, pled guilty to aggravated assault, with an agreed sentence of six years as a Range I offender. The parties agreed that the trial court would determine the manner of service of the sentence, and, after a hearing, the court sentenced Appellant to incarceration, denying him an alternative sentence. On appeal, Appellant contends that the trial court erred by: (1) considering enhancement factors when deciding the manner by which Appellant should serve his sentence; (2) improperly applying enhancement factor number (10), that the risk to human life was high, because a fetus is not a person for purposes of this enhancement factor; and (3) denying him an alternative sentence based, in part, on his facial expression during the sentencing hearing. Because it appears from the record that the trial court properly considered and applied the applicable enhancement factors and based its denial of an alternative sentence on appropriate considerations, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/guzmanchaveza_041108.pdf


STATE OF TENNESSEE V. JEREMY RAY HINES

Court: TCCA

Attorneys:

Mack Garner, Maryville, Tennessee, and J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jeremy Hines.

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

Judge: OGLE

The appellant, Jeremy Hines, pled guilty in the Blount County General Sessions Court to simple possession of marijuana, a Schedule VI controlled substance, and received a $500 fine and a suspended sentence of eleven months and twenty-nine days in incarceration. The appellant was placed on supervised probation, which was revoked in June 2006 for his failure to pay fines and costs. The appellant appealed this revocation to the Blount County Circuit Court, which extended his suspended sentence. The circuit court placed the appellant on supervised probation following a brief period of incarceration and reserved jurisdiction over the appellant's probation. In November 2006, the circuit court revoked the appellant's probation for drug use, ordered him to serve a brief jail term, and returned him to supervised probation. In April 2007, the circuit court again revoked his probation and ordered that he serve the remainder of his sentence in confinement. On appeal, the appellant claims that the circuit court erred by revoking his probation. Pursuant to the plain error doctrine, we conclude that the circuit court lacked jurisdiction over the supervision of the appellant's probationary sentence. Therefore, we vacate the circuit court's revocation order and remand the case to the circuit court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2008/hinesj_041108.pdf


GEORGE LANGFORD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brett B. Stein, Memphis, Tennessee, for the appellant, George Langford.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; William L. Gibbons, District Attorney General; and Karen Cook, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, George Langford, appeals the trial court's dismissal of his Petition for Writ of Error Coram Nobis and/or Petition for Post-Conviction Relief in which he contended that the trial court's instructions to the jury violated his constitutional right to due process. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/langfordg_041108.pdf


BOBBY JOE LESTER V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the Appellant, Bobby Joe Lester.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; David Pritchard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County Jury convicted the Petitioner, Bobby Joe Lester, of attempted first degree murder, especially aggravated kidnapping, two counts of aggravated assault, and coercion of a witness. The trial court merged the aggravated assault conviction with the conviction for attempted first degree murder and sentenced the Petitioner to an effective eighty-five year sentence. The conviction and sentences were affirmed by this Court on direct appeal. State v. Bobby Joe Lester, No. W2004-00842-CCA-R3-CD, 2005 WL 1798763 (Tenn. Crim. App., at Jackson, July 28, 2005). The Petitioner filed a petition for post-conviction relief, amended by appointed counsel, alleging he did not receive the effective assistance of counsel. The post-conviction court dismissed the petition after a hearing. On appeal, the Petitioner contends that he is entitled to post-conviction relief because his trial counsel was ineffective by: (1) failing to request the jury be instructed on facilitation; (2) failing to adequately argue in the motion for new trial that his convictions for especially aggravated kidnapping and attempted first degree murder violate due process, citing State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); and (3) failing to object to testimony from the victim about a prior rape. The Petitioner also contends that his appellate counsel was ineffective for failing to argue the Anthony issue on appeal. After reviewing the issues and applicable authorities, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/lesterb_041108.pdf


STATE OF TENNESSEE v. LAURA JUNE MAYS

Court: TCCA

Attorneys:

Wayne T. DeWees, Bolivar, Tennessee, for the appellant, Laura June Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; Elizabeth Rice, District Attorney General, and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

As a result of stealing funds from her employer, in 2002, Appellant, Laura June Mays, was convicted by a Hardeman County jury of theft of property between $10,000 and $60,000. Upon her conviction, the trial court placed Appellant on probation with a requirement that she and her co-defendant make restitution in the amount of $42,000. On January 5, 2006, Appellant's probation was extended. Appellant failed to make payments pursuant to the January 5, 2006 order. On October 31, 2006, a probation violation warrant was filed. Following a hearing, the trial court revoked Appellant's probation for failure to pay restitution. On appeal, Appellant argues that the trial court erred in revoking her probation without taking into account her ability to pay. We reverse and remand the trial court's decision because the evidence preponderates against the trial court's findings that Appellant has willfully refused to pay her restitution or make a bona fide attempt to obtain the means to pay her restitution.

http://www.tba2.org/tba_files/TCCA/2008/maysl_041108.pdf


JEFF MEDLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeff Medley, Pro Se, Pine Knot, Kentucky.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Jeff Medley, has appealed the trial court's order dismissing his petition for "Writ of Error Coram Nobis to Vacate State Conviction Where Sentence has been Served" in which Petitioner alleged that he was ineffectively represented and entered an involuntary and unknowing guilty plea. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for coram nobis relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/medleyj_041108.pdf


JAMES EDWARD MITCHELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James Edward Mitchell, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, James Edward Mitchell, appeals the Davidson County Criminal Court's dismissal of his petition for post-conviction relief pursuant to the Post-Conviction DNA Analysis Act of 2001. He contends the trial court erred in denying relief because (1) the DNA test results proved his innocence; (2) the state failed to file a timely response to the petition; and (3) the trial court did not appoint counsel and allow the petitioner to amend his petition. We affirm the trial court's dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2008/mitchellj_041108.pdf


STATE OF TENNESSEE v. JAMES SCOTT

Court: TCCA

Attorneys:

Paul Lewis, Millington, Tennessee, for the appellant, James Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and James Wax and Kirby May, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Shelby County Criminal Court jury convicted the defendant, James Scott of one count of driving under the influence of an intoxicant (DUI), fourth offense. On appeal, he alleges that the trial court erred in denying his motion to dismiss the indictment for selective prosecution and his attempt to impeach a witness without viewing the pertinent parts of a video he claimed supported both claims, that the trial court erred in imposing more than the presumptive minimum sentence, and that the trial judge erred in failing to recuse himself for the ruling on the motion for new trial. Upon review, we reverse the trial court's order overruling the motion for new trial and remand.

http://www.tba2.org/tba_files/TCCA/2008/scottj_041108.pdf


STATE OF TENNESSEE v. ANTHONY CRAIG SMITH

Court: TCCA

Attorneys:

Hank Hill, Chattanooga, Tennessee, for the appellant, Anthony Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Boyd Patterson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The State of Tennessee appeals from the Hamilton County Criminal Court's order that sustained the appeal of the petitioner, Anthony Craig Smith, from the general sessions court. The general sessions court found that the petitioner had violated the implied consent law, see T.C.A. section 55-10-406 (2004), and the criminal court ruled upon de novo review that the evidence was insufficient to support an adjudication that the petitioner violated the law. On appeal of the criminal court's order, we hold that the defendant did not perfect a timely appeal to the criminal court, that the writ of certiorari may be inapt as a means of the criminal court's reviewing the general sessions court order, and that the State did not waive these two issues. Accordingly, we reverse the order of the criminal court and remand the case.

http://www.tba2.org/tba_files/TCCA/2008/smitha_041108.pdf


STATE OF TENNESSEE v. TIMOTHY SWOFFORD

Court: TCCA

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Timothy Swofford.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; Charles W. Bell, Jr., Assistant District Attorney General; and Pam Fleming, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Timothy Swofford, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to one count of driving under the influence (DUI), first offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, to be suspended after serving forty-eight hours in confinement. As a condition of his guilty plea, Defendant properly reserved a certified question of law as to whether he was subjected to an unconstitutional traffic stop. After a review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/swoffordt_041108.pdf


JAMES WILLIAM TAYLOR a/k/a LUTFI SHAFQ TALAL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James William Taylor a/k/a Lufti Shafq Talal, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant Attorney General, and Ron Davis, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner has appealed the Hickman County habeas corpus court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, Petitioner alleged that he was improperly sentenced, that the trial court lacked authority to determine his release eligibility and that the trial court failed to render a final sentencing judgment regarding his first degree murder conviction. 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 we affirm the judgment.

http://www.tba2.org/tba_files/TCCA/2008/taylorj_041108.pdf


STATE OF TENNESSEE v. ERNEST MICHAEL TURNER

Court: TCCA

Attorneys:

Edwin C. Lenow, Memphis, Tennessee, for the appellant, Ernest Michael Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Elizabeth Rice, District Attorney General, and Mike Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Ernest Michael Turner, was convicted by a Tipton County jury of violating a habitual motor vehicle offender order, violating the implied consent law and driving under the influence ("DUI"). In a bifurcated hearing, the jury found Appellant guilty of third offense DUI. As a result of the convictions, Appellant was sentenced to an effective six-year sentence. On appeal, Appellant challenges: (1) the trial court's decision to allow two police officers to testify as to their opinion about Appellant's state of intoxication; (2) the validity of the order declaring Appellant to be a habitual motor vehicle offender; and (3) the sufficiency of the evidence. We determine that Appellant is improperly attempting to collaterally attack the underlying order declaring him to be a habitual motor vehicle offender and that the trial court properly allowed the police officers to testify under Tennessee Rule of Evidence 701. Consequently, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/turnere_041108.pdf


Activities that a Licensed Real Estate Broker May Perform Without Having an Auctioneer's License

TN Attorney General Opinions

Date: 2008-04-11

Opinion Number: 08-89

http://www.tba2.org/tba_files/AG/2008/ag_08_89.pdf

Ability of Federally Recognized Indian Tribes to Conduct Gambling Activities In Tennessee

TN Attorney General Opinions

Date: 2008-04-11

Opinion Number: 08-90

http://www.tba2.org/tba_files/AG/2008/ag_08_90.pdf

Constitutionality of Proposed Tennessee Administrative License Revocation Act of 2008

TN Attorney General Opinions

Date: 2008-04-11

Opinion Number: 08-91

http://www.tba2.org/tba_files/AG/2008/ag_08_91.pdf

Reclamation Requirements Affecting Mineral Surface Mining Operations

TN Attorney General Opinions

Date: 2008-04-11

Opinion Number: 08-92

http://www.tba2.org/tba_files/AG/2008/ag_08_92.pdf

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The ABA Journal links to the story
Committee: White House view of executive privilege is 'most expansive since Watergate'
President Bush's refusal to let two confidants provide information to Congress about fired federal prosecutors represents the most expansive view of executive privilege since Watergate, the House Judiciary Committee told a federal judge Thursday. The dispute is part of a lawsuit that pits the legislative branch against the executive in a fight over a presidential powers.
The Mercury News reports on this AP story
'Newseum' opens to honor 1st Amendment
A "Newseum" opens in Washington, DC today, a monument fronted by a 74-foot marble tablet inscribed with the 45 words of the First Amendment. First Amendment scholar Ronald K.L. Collins writes about what the new museum means and why it is important.
Read the commentary on firstamendmentcenter.org
Legislative News
Lt. Gov. Ramsey comments on Tennessee Plan
The Nashville City Paper reports on comments made by Lt. Gov. Ron Ramsey on the Tennessee Plan. The comments came yesterday at the regular press availability at the close of the week's legislative business.
Read the remarks
Senate passes line of succession legislation
The state Senate yesterday passed a measure that establishes a line of succession for when the governor is incapacitated. First in line would be the lieutenant governor, followed by the speaker of the House, the secretary of State, the comptroller of the Treasury, and finally, the state treasurer.
NewsChannel 5 has the story
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 postiion 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
Upcoming
Reception for Chancellor Peoples set
A 30th anniversary reception honoring Chancellor Howell N. Peoples will be May 12, from 11:30 a.m. to 1 p.m. at the Hamilton County City Courts Building, 600 Market Street in Chattanooga. Respond by April 18 to (423) 209-7385. For more information contact Chattanooga Bar Association Executive Director Linda Minks Hood.

Youth court teen volunteers to visit state capitol
On April 16, teens who volunteer with youth court programs in the state will be in Nashville for the third annual Youth Court Day on the Hill. They will spend the day visiting the capitol, meeting with legislators, observing committee meetings and touring the Tennessee Supreme Court. Youth court programs, also known as teen courts, allow first-time non-violent offenders to be sentenced by a jury of their peers in a court-like setting. These programs are lauded for their low re-offense rate and the civic education they impart. Tennessee has 10 active youth courts, ranging from Bristol in the east to Tiptonville in the northwest.

Disciplinary Actions
Goodlettsville lawyer censured
On April 7, Ramsdale O'DeNeal of Goodlettsville received a public censure from the Tennessee Supreme Court. His failure to keep adequate trust account records violated Rules 1.15 and 8.4(a) of the Tennessee Rules of Professional Conduct, the court ruled.
Read the BPR release
Former Kingsport lawyer suspended
On April 7, the Supreme Court of Tennessee suspended former Kingsport attorney Richard Alan Counts's law license for 30 days. Counts, who now lives in Florida, transferred his law license to disability inactive status in 1993, which stopped any disciplinary proceeding. But when his license was returned to active status in 2004, an action involving excessive fees was reactivated.
Read the BPR release
Two lawyers reinstated
Gary S. Genovese of Weston, Fla., and Nashville lawyer Chelli R. Jones were reinstated to the practice of law after completing continuing legal education requirements. They both were suspended in September 2003.

Colorado lawyer pays fees
Michael H. Jackson Born of Denver has made full payment for delinquent fees and penalties but remains suspended for CLE non-compliance.
View all attorneys suspended and reinstated for 2007 fee violations
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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