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."
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Court: TSC


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.


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.



Court: TCA


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.


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.



Court: TCA


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.


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.



Court: TCCA


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.


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.



Court: TCCA


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.



Court: TCCA


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.


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.


With Concurring Opinion

Court: TCCA


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.


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.


WITT concurring


Court: TCCA


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.


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.



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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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