Tennessee Plan bills move in House, fate still uncertain

The House Government Operations Committee today moved to the Calendar Committee a bill (SB3098 by Wilder, HB2769 by L. Deberry) to extend until 2012, with no changes in structure, the Judicial Selection and Judicial Evaluation Commissions.

In related action, the committee also passed the "omnibus" or "sweeper" bill (SB 3187 by Harper, HB3524 by Kernell), which continues for one year all 90 agencies that have not had the statutorily required review hearing. The selection and evaluation commissions are also included in that bill. The companion bills remain in the Senate Government Operations Committee, which is set to meet next week.

While it is apparent that there has been no complete agreement regarding the contours that will finally emerge, the TBA remains quite hopeful that the leadership focused on the issue will come up with a workable solution.

TBA President Marcy Eason said, "the TBA continues to advocate for the essential elements of the merit selection system to avoid expensive, partisan, contested elections."
TODAY'S OPINIONS
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01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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.

STATE OF TENNESSEE v. ANTONIO D. RICHARDSON

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; C. Daniel Lins, Assistant Attorney General; and Pamela Sue Anderson, Assistant District Attorney General, for the appellant, State of Tennessee.

Ross Alderman, Public Defender, and Emma Rae Tennent, J. Michael Engle, and Graham Prichard, Assistant Public Defenders, Nashville, Tennessee, for the appellee, Antonio D. Richardson.

Judge: HOLDER

The defendant, Antonio Richardson, was convicted of two counts of especially aggravated kidnapping, one count of felony reckless endangerment, one count of aggravated assault, and one count of burglary. In addition, the defendant pleaded guilty to attempted especially aggravated robbery. The Court of Criminal Appeals ruled that the kidnappings were essentially incidental to the attempted especially aggravated robbery and therefore the kidnapping convictions violated due process under the principles stated in State v. Anthony. We reverse the intermediate appellate court and reinstate the convictions.

http://www.tba2.org/tba_files/TSC/2008/richardsona_050708.pdf


NICOLE LOREN BAKER, ET AL. v. VIRGINIA LOUISE SMITH

Court: TCA

Attorneys:

William T. Winchester, Memphis, Tennessee, for the appellants, Nicole Loren Baker and Gary Wills Baker.

Lara Butler, Memphis, Tennessee, for the appellee, Virginia Louise Smith.

Regina M. Newman, Guardian Ad Litem.

Judge: FARMER

Petitioners, Father and his wife, filed a petition to terminate Mother's parental rights on the grounds of abandonment for failure to pay child support, persistence of conditions, and severe child abuse, and for adoption of child by Father's wife. The trial court granted Mother's motion for directed verdict at the close of Petitioners' proof and dismissed the petition. Petitioners appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2008/bakern_050708.pdf


TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA as subrogee of SMITH MECHANICAL CONTRACTORS, INC. v. LAWYER'S TITLE INSURANCE CORPORATION, ET AL.

Court: TCA

Attorneys:

William T. Alt, Chattanooga, Tennessee for the Appellant, Travelers Casualty & Surety Company of America as subrogee of Smith Mechanical Contractors, Inc.

P. Edward Pratt, Knoxville, Tennessee for the Appellees, Lawyers Title Insurance Corporation and First Tennessee Bank National Association.

Judge: SWINEY

Travelers Casualty & Surety Company of America ("Travelers") as subrogee of Smith Mechanical Contractors, Inc. ("Smith Mechanical") sued Lawyer's Title Insurance Company ("Lawyer's Title") and First Tennessee Bank National Association ("the Bank") seeking, among other things, a judgment declaring a mechanic's lien filed by Smith Mechanical to have priority over a deed of trust held by the Bank with regard to real property located in Johnson City, Tennessee. Lawyer's Title and the Bank filed a motion to dismiss or for summary judgment. After a hearing, the Trial Court entered an order finding and holding, inter alia, that Travelers' complaint was barred under the doctrine of res judicata; that the complaint was barred under the compulsory counterclaim rule; that Travelers never acquired Smith Mechanical's mechanic's lien rights; and, that the Bank had recorded a payment bond ("Performance Bond"), which operated to discharge Smith Mechanical's lien from the real property. Travelers appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2008/travelerscasualty_050708.pdf


STATE OF TENNESSEE v. WILLIS AYERS

Court: TCCA

Attorneys:

Eric Christensen, Memphis, Tennessee, for the appellant, Willis Ayers.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; Michelle Kimbril-Parks, Assistant District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Willis Ayers, was indicted for first degree murder and especially aggravated robbery. Defendant was tried jointly with co-defendant, Charles Curtis, and another co-defendant, David Milken, was tried separately for the charged offenses. Co-defendant Curtis's case is not part of this appeal. Following a jury trial, Defendant was found guilty of the lesser included offenses of second degree murder and facilitation of especially aggravated robbery. The trial court sentenced Defendant as a Range I, standard offender, to twenty-two years for his second degree murder conviction, and as a Range II, multiple offender, to fourteen years for his facilitation of especially aggravated robbery conviction. The trial court ordered Defendant to serve his sentences consecutively, for an effective sentence of thirty-six years. In his appeal, Defendant argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erred by failing to instruct the jury that State's witness Corey Smith was an accomplice to the charged offenses; (3) the trial court erred in denying Defendant's motion for severance; and (4) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/ayersw_050708.pdf


STATE OF TENNESSEE v. DAVID FORD

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; J. Michael Taylor, District Attorney General; and David O. McGovern and Sherry D. Shelton, Assistant District Attorneys General, for the appellant, State of Tennessee.

Ronnie J.T. Blevins, Jasper, Tennessee, for the appellee, David Ford.

Judge: GLENN

Following the execution of a search warrant and seizure of various items from his residence, the defendant, David Ford, was indicted for one count of promotion of methamphetamine manufacturing and one count of initiation of a process intended to result in the manufacture of methamphetamine. He moved to suppress the evidence seized as the result of the search, arguing that the search warrant was void ab initio because it was signed by a city court judge and that such judges do not have the authority to issue search warrants. The trial court agreed with this claim, granted the motion to suppress, and dismissed the defendant's indictment. On appeal, the State argues that the trial court erred in finding that city court judges may not issue search warrants. We agree with the State, reverse the judgment of the trial court, and remand with instructions to deny the motion to suppress and reinstate the indictment.

http://www.tba2.org/tba_files/TCCA/2008/fordd_050708.pdf


VINCENT HOWARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gerald S. Green, Memphis, Tennessee (on appeal), and Ross Sampson, Memphis, Tennessee (at trial), for the appellant, Vincent Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; and Douglas Gregory Gilbert, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Vincent Howard, was convicted by a Shelby County Criminal Court jury of first degree felony murder and especially aggravated robbery and received consecutive sentences of life without the possibility of parole and twenty-one years. He seeks post-conviction relief on grounds that he received the ineffective assistance of counsel. The trial court denied relief, and we affirm that judgment.

http://www.tba2.org/tba_files/TCCA/2008/howardv_050708.pdf


STATE OF TENNESSEE v. ANTHONY RIGGS
With Concurring Opinion


Court: TCCA

Attorneys:

Claudia S. Jack, District Public Defender; and R.H. Stovall, Jr., Assistant Public Defender, Pulaski, Tennessee, for the appellant, Anthony Riggs.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General, T. Michel Bottoms, District Attorney General; and Douglas A. Dicus, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Anthony Riggs, was found guilty of the offense of rape, a Class B felony, and the trial court sentenced Defendant to twelve years for his conviction. On appeal, Defendant argued that the length of the sentence was excessive and contrary to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Upon review, this Court found that the trial court improperly applied two of the five enhancement factors it found applicable. Nonetheless, relying on State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) ("Gomez I"), we concluded that the remaining three enhancement factors were sufficient to enhance Defendant's sentence to twelve years and affirmed his sentence. State v. Anthony Riggs, No. M2005-02105-CCA-R3-CD, 2007 WL 49553 (Tenn. Crim. App., at Nashville, January 8, 2007). Defendant filed an application for permission to appeal pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. The Tennessee Supreme Court granted Defendant's application for the limited purpose of remanding to this Court for reconsideration of the length of Defendant's sentence in light of State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ("Gomez II"). After a thorough review of the record, we modify Defendant's sentence for rape from twelve years to eleven years.

http://www.tba2.org/tba_files/TCCA/2008/riggsa_050708.pdf

WITT concurring
http://www.tba2.org/tba_files/TCCA/2008/riggsa_CON_050708.pdf


MAURICE SHAW v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Tracy A. Brewer-Walker, Ripley, Tennessee, for the appellant, Maurice Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Mike Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner was convicted by a jury of one count of possession of cocaine over 0.5 grams with intent to deliver and one count of delivery of over 0.5 grams of cocaine. The trial court sentenced Petitioner to eleven years on each count to be served concurrently. Petitioner appealed his convictions and sentences to this Court, and we affirmed the judgments of the trial court. State v. Maurice Shaw, No. W2005-02097-CCA-R3-CD, 2006 WL 3085503 *1-3 (Tenn. Crim. App., at Jackson, Oct. 21, 2006), perm. app. denied (Tenn. Jan. 9, 2007). Petitioner timely filed a petition for post-conviction relief. The trial court denied the petition, and the instant appeal followed. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/shawm_050708.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Budget cuts hit education, jobs, DUI initiative
A tight budget climate has forced Gov. Phil Bredesen to scrap his top anti-drunken driving initiative -- the automatic revocation of driver's licenses held by persons arrested for DUI. Also on the chopping block are more than 2,000 state jobs, the planned expansion of pre-kindergarten and basic education programming, and more.
The Knoxville News Sentinel provides coverage
McCain vows to appoint conservative judges
John McCain yesterday pledged to appoint conservative federal judges to the bench if elected president. Speaking at Wake Forest University in Winston-Salem, N.C., McCain criticized some Supreme Court precedents and accused federal judges of "common and systematic abuse" of their powers in his first major campaign address on the subject.
The Wall Street Journal has more
Pride joins field for Appeals Court seat
Nathan B. Pride, an attorney and professor from Jackson, has applied for consideration for the open western division Court of Appeals seat. He joins William H. Haltom Jr., William Michael Richards, James Steven Stafford and Todd A. Rose as candidates. The deadline to submit applications is May 9.

6th candidate applies for Criminal Appeals seat
J. Ross Dyer, senior counsel in the Memphis office of the Attorney General, has joined the list of applicants to fill the vacant Court of Criminal Appeals seat for the western division. Other candidates are: Clayburn L. Peeples Jr., Jeff Mueller, Joe H. Walker III, Garland Ingram Erguden and W. Mark Ward. The deadline to submit an application is May 9.

A first for online law school grads
Four California lawyers made history recently when they became the first attorneys sworn in by the Supreme Court who had graduated from a fully online law school. Graduates of the Concord Law School all practice in California, which is the only state that allows students from unaccredited, non-classroom "correspondence" schools to sit for its bar exam.
Read more in a Legal Times article provided by The National Law Journal
Harbison case to be center of death-penalty debate
A Chattanooga man convicted of murder in 1983 likely will serve as the state's benchmark case in a national debate over whether lethal injection is cruel and unusual punishment. A spokeswoman for the attorney general says the state already has begun the first step in the legal back-and-forth with Edward Jerome Harbison's defense.
The Chattanooga Times Free Press has more
Press reports hurt Puryear nomination, reports say
Nashville lawyer Gus Puryear's chances of being confirmed for a seat on the U.S. District Court for Middle Tennessee appear dimmer following a series of New York Times articles published this week.
The Nashville Post has the story (subscription required)
Rutherford County woman honored by TJC
The Tennessee Justice Center on Tuesday honored Lisa Addison as its Mother of the Year in recognition of her efforts in fighting for the rights of her son. Addison is a single mother of two teens, one of whom has special needs. Her constant battle has revolved around obtaining necessary health care for her son.
Read more from the Murfreesboro Daily News
TBA Member Services
UPL enforcement resources available
The TBA Standing Committee on the Protection of the Public from the Unauthorized Practice of Law encourages all lawyers in Tennessee to be alert to the unauthorized practice of law (UPL), which harms Tennessee consumers. Resources now are available to help lawyers report UPL to local bar associations and the state attorney general. Local bars that do not already have a process in place for handling UPL complaints, may want to check out a sample protocol on TBALink.
Visit the UPL webpage for more information

 
 
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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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