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Thursday, October 06, 2011

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Amazon to begin collecting sales tax in 2014

In a deal announced today by Gov. Bill Haslam, Amazon will abandon its claim that it does not have to collect sales tax from Tennessee customers and begin collecting those taxes in 2014 in exchange for government support for two more distribution centers in the state. In addition, company and state officials both pledged to push for a national solution on the collection of online sales tax. The announcement comes just days after state Attorney General Robert Cooper found that online retailers with warehouses or distribution centers in Tennessee should be collecting and paying sales taxes. The deal will have to be approved by the legislature, which is scheduled to reconvene in January.

The Nashville Business Journal reports

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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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.

W. ALLEN BARRETT v. GILES COUNTY ET AL.

Court: TCA

Attorneys:

S. Jason Whatley, Sr., Columbia, Tennessee, for the appellant, W. Allen Barrett.

John Christopher Williams, Lawrenceburg, Tennessee, and Lucy D. Henson, Pulaski, Tennessee, for the appellee, Giles County.

Vicki Coleman, Pulaski, Tennessee, Pro Se.

Judge: BENNETT

The losing candidate filed an election contest alleging that the election commission made a mistake by placing the candidate who eventually won the election on the ballot. The election commission admitted it erred in determining that the candidate who later won had a sufficient number of valid signatures on her nominating petition. The trial court found that the losing candidate failed to carry his burden of proof and dismissed the case. He appealed. We affirm, finding that this was not a proper election contest and that a challenge to a person's appearance on a ballot should ordinarily be filed before the election.

http://www.tba2.org/tba_files/TCA/2011/barrttw_100611.pdf

IN RE: BRITTANY M.A.

Court: TCA

Attorneys:

Lewis A. Williams, Nashville, Tennessee, for the appellant, S.D.C.

C. Tracey Parks, Lebanon, Tennessee, for the appellee, J.W.A.

Judge: FRANKS

The petition filed by the father asked that the father become primary residential parent of the child, and that child support be set pursuant to Tennessee child support guidelines. At an evidentiary hearing, the Trial Judge granted the father temporary custody of the child and gave the mother parenting time with the child on two weekends each month. The father's obligation of child support was suspended, and the Trial Court set the matter for further hearing five months later. At the conclusion of that hearing the Trial Court determined that the mother's income was "not less than $90,000.00 per year" and ordered child support and a back judgment pendente lite for child support. The mother appealed. We hold the Trial Court's Judgment should be modified because the evidence does not support income at the level set by the Trial Court. We modify the amount downward to $52,000.00 a year and remand for the purposes of establishing child support in accordance with these guidelines.

http://www.tba2.org/tba_files/TCA/2011/brittanyma_100611.pdf

IN RE: TIPHANI H.

Court: TCA

Attorneys:

Rachel M. Stephens, Hixson, Tennessee, for the appellant, Mercedes T.N.

Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Terry E.H.

Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant Attorney General, Tennessee, for the appellee, Tennessee Department of Children's Services.

Judge: FARMER

This is a parental termination case. The juvenile court terminated the parental rights of mother and father on the grounds of persistence of the conditions that required the child's removal and substantial noncompliance with the terms of the permanency plans. Both parents appealed. The mother and father argue the Department of Children's Services did not clearly and convincingly prove grounds for termination of parental rights and did not clearly and convincingly prove termination of parental rights was in the best interests of the child. The mother also argues the trial court erred in determining she waived her right to appear at the termination hearing. We affirm.

http://www.tba2.org/tba_files/TCA/2011/tiphanih_100611.pdf

JACKIE F. CURRY v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Jackie F. Curry, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Jackie F. Curry, appeals the Johnson County Circuit Court's summary dismissal of his pro se petition for writ of habeas corpus. Following our review, we affirm the summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2011/curryj_100611.pdf

STATE OF TENNESSEE v. ARTHUR DONAHUE

Court: TCCA

Attorneys:

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellant, Arthur Donahue.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William H. Cox, District Attorney General; and Bret Alexander, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Arthur Donahue, appeals the revocation of his community corrections sentence, arguing that the trial court abused its discretion by basing its revocation decision on his mere technical violations of the sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/donahuea_100611.pdf

STATE OF TENNESSEE v. VALENTINO L. DYER

Court: TCCA

Attorneys:

Larry G. Roddy (on appeal) and J. Shannon Garrison (at trial), Dayton , Tennessee, for the appellant, Valentino L. Dyer.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; James Michael Taylor, District Attorney General; and Will Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Valentino L. Dyer, was convicted by a Rhea County jury of especially aggravated burglary, especially aggravated robbery, reckless endangerment, and aggravated assault. The trial court modified the conviction for especially aggravated burglary to aggravated burglary, merged the convictions for aggravated assault and reckless endangerment into the especially aggravated robbery conviction, and sentenced the defendant as a Range II, multiple offender to concurrent terms of eight years at thirty-five percent for the aggravated burglary conviction and thirty-two years at 100 percent for the especially aggravated robbery conviction, with the sentences to be served consecutively to the defendant's sentences in another case. The defendant raises the following issues on appeal: (1) whether the indictment was defective for failing to state sufficient facts; (2) whether he adequately waived his right to testify in his own defense; (3) whether the trial court erred by disallowing evidence of the victims' alleged activity as drug dealers to show their reputation for dishonesty; (4) whether the evidence was sufficient to sustain the convictions; and (5) whether the trial court properly sentenced him as a Range II offender and whether the sentences were excessive. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/dyerv_100611.pdf

STATE OF TENNESSEE v. WILL ROGERS SALMON

Court: TCCA

Attorneys:

Bryan E. Delius (on appeal and at trial) and Bryce W. McKenzie (on appeal), Sevierville, Tennessee, for the appellant, Will Rogers Salmon.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. turner, Senior Counsel; James B. Dunn, District Attorney General; and Gregory C. Eshbaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Will Rogers Salmon, pled guilty in the Sevier County Circuit Court to DUI, first offense, and violation of the implied consent law and was sentenced to eleven months, twenty-nine days in the county jail, suspended to supervised probation following the service of forty-eight hours. As a condition of his guilty pleas, the defendant attempted to reserve the following two certified questions of law: (1) whether reasonable suspicion, based on specific and articulable facts, justified his traffic stop and detention; and (2) whether the arresting officer's intrusion into his vehicle constituted a custodial environment that required the suppression of any post-arrest statements pursuant to Miranda v. Arizona. 384 U.S. 436 (1966). Based on our review, we agree with the State that the trial court properly found that the traffic stop and detention were justified. We further agree that the defendant's second certified question of law is not dispositive of his case and, thus, is not properly before this court. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/salmonw_100611.pdf

STATE OF TENNESSEE v. TOBIAS SENTER, a/k/a TOBY SENTER

Court: TCCA

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Tobias Senter, a/k/a Toby Senter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; and James B. Dunn and W. Brownlow Marsh, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Tobias Senter, a/k/a Toby Senter, was convicted by a Cocke County Circuit Court jury of first degree premeditated murder and sentenced to life imprisonment, to be served consecutively to a life sentence imposed by a federal district court. On appeal, he challenges the sufficiency of the evidence and the trial court's imposition of a consecutive sentence. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/sentert_100611.pdf

TODAY'S NEWS

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Legal News

Bar results to be released Friday

Results from the July Tennessee bar exam are expected to be released Friday. Watch for the complete listing on the Tennessee Bar Association website. The list is usually released around noon.

See results on the TBA website

Appeals based on judge's misconduct move forward

Lawyers for defendants appealing convictions based on the misconduct of former Knox County Criminal Court Judge Richard Baumgartner had until Sept. 30 to notify the court whether they plan to use the Tennessee Bureau of Investigation's report on the judge as part of their arguments for new trials. Those filings, reviewed by the News Sentinel, contain no reference to the TBI report, suggesting some documents may have been filed under seal. The TBI's investigative file also remains sealed and is exempt from the state's Open Records Act. A recent order from Special Judge Jon Kerry Blackwood, however, makes it clear that the TBI report will be made a part of the record in each of the cases and will be considered by the court in determining whether to grant new trials.

The News Sentinel has more

Criminal probe of Gibson confirmed

Federal prosecutors confirmed this week that there is a criminal investigation under way related to a recent raid at Gibson Guitar. News of the probe came in a filing that asked the court to delay efforts by the company to reclaim recently seized wood. The Associated Press reports that U.S. Attorney Jerry Martin declined to provide more details, and specifics of the investigation by the Justice Department's Environmental Crimes Section have been filed under seal. Gibson Chief Executive Officer Henry Juszkiewicz has denied wrongdoing and complained that the federal government has implicated the company without filing charges.

The News Sentinel has the story

General sessions judge hails DUI court

Williamson County General Sessions Court Judge Denise Andre recently was praising the first graduating class of DUI Court, an intensive year-long program created to reduce the number of DUI re-offenders and save lives. Modeled after the success of the state's drug courts, the DUI Court targets nonviolent, repeat offenders. After completing an in-patient program, participants return home but must meet with a counselor, undergo alcohol and drug testing, hold down a job, be in a 12-step program and perform public service work.