TBALink Opinion-Flash

February 2, 1997 -- Volume #3 -- Number #015

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

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00-New Opinions From TSC
00-New Opinions From TSC-Rules
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03-New Opinions From TCA
09-New Opinions From TCCA

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LAWRENCE WOODWARD HAMILTON
vs.
BRENDA K. SMITH HAMILTON

Court:TCA

Attorneys:  

SEYMOUR S. ROSENBERG
Memphis, Tennessee
Attorney for Plaintiff/Appellant

DAVID W. CAMP
WALDROP & HALL, P.A.
Jackson, Tennessee
Attorney for Defendant/Appellee                       

Judge: HIGHERS

First Paragraph:

AFFIRMED

In this divorce action, the Plaintiff, Lawrence Woodward Hamilton,
filed his petition for divorce on July 20, 1993.  The Defendant,
Brenda Kay Smith Hamilton, filed a counter-complaint seeking a divorce
on the grounds of inappropriate marital conduct.  The trial court
granted the Defendant's request for a divorce on the grounds of
inappropriate marital conduct. The trial court awarded the parties'
marital residence as well as household furnishings to the Defendant. 
The Plaintiff was ordered to pay all outstanding marital debts other
than the first and second mortgage on the marital residence, all
expenses incurred by the Defendant as a result of this action
including the Defendant's attorney fees and $2,200.00 per month in
permanent alimony.  The trial court awarded the Defendant one-half of
the Plaintiff's retirement proceeds and ordered the Plaintiff to
maintain the Defendant on his health insurance policy for three years.
 The trial court further ordered the Plaintiff to maintain a
$50,000.00 life insurance policy naming the Defendant as the
irrevocable beneficiary.  The Plaintiff has appealed the judgment of
the trial court arguing that the trial court erred in awarding the
Defendant permanent alimony and attorney fees.

URL:http://www.tba.org/tba_files/TCA/hamilton_opn.WP6
Opinion-Flash

SAM POSEY, DANNY TODD, BILLY CHITWOOD, and JIMMY PORTER
vs.
CITY OF MEMPHIS, TENNESSEE, DIVISION OF FIRE SERVICES OF MEMPHIS,
TENNESSEE, DR. W. W. HERENTON, Mayor, WESTELLE FLOREZ, Director of the
Division of Personnel, and CHARLES SMITH, Director of the Division of
Fire Services

Court:TCA

Attorneys:  

Mark Allen,
Florence M. Johnson,
AGEE, ALLEN, GODWIN, MORRIS & LAURENZI, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

Louis P. Britt, III,
Charles V. Holmes,
Robert E. Teutsch, Jr.,
McKNIGHT, HUDSON, LEWIS & HENDERSON, PLLC, Memphis, Tennessee
Attorneys for Defendants/Appellees.                        

Judge: FARMER

First Paragraph:

VACATED AND REMANDED

The appellants to this action are either current or retired firemen
for the Division of Fire Services of Memphis, Tennessee (Division). 
They appeal from a judgment of the trial court in favor of Appellees,
City of Memphis, Tennessee (City), the Division, Dr. W. W. Herenton,
Mayor, Westelle Florez, Director of the Division of Personnel, and
Charles Smith, Director of the Division, on their action seeking
declaratory and injunctive relief regarding the appellees' method of
computing pension benefits for those firefighters employed by the City
for 30 or more years.  After review of the record, we vacatge the
judgment of the trial court and remand this cause for further
proceedings consistent with this opinion.

URL:http://www.tba.org/tba_files/TCA/posey_opn.WP6
Opinion-Flash

HOWARD A. WOODS
vs.
M.T.C. MANAGEMENT and SOLOMON MANAGEMENT

Court:TCA

Attorneys:

Howard A. Woods, Pro Se
J. Whitten Gurkin, Memphis, Tennessee, for Defendants/Appellees                          

Judge: FARMER

First Paragraph:

AFFIRMED AND REMANDED

The issue before this Court is whether the trial court erred in
dismissing Plaintiff's suit for lack of jurisdiction.  Plaintiff sued
the defendants alleging he was wrongfully evicted from property
located at 3211 Ashwood, Memphis, Tennessee.  He further alleged that
the defendants were in further violation of the Uniform Residential
Landlord and Tenant Act set forth at T.C.A. S 66-28-101 et seq. as
follows: S 66-28-501 (noncompliance with rental agreement by
landlord); S 66-28-502 (failure to supply essential services) and S
66-28-504 (unlawful ouster, exclusion, or diminution of service).

URL:http://www.tba.org/tba_files/TCA/woodsha_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
ABA
ROBERT WILLIS CHANCE, JR.

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:
James T. "Jim" Sanderson        Charles W. Burson
 & Associates, P.C.             Attorney General and Reporter
Stephen L. Hale 
William G. Hatton               William David Bridgers
Attorneys for Appellant         Assistant Attorney General             
P. O. Box 331                   Criminal Justice Division   
Bolivar, TN  38008              450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                G. Robert Radford
                                District Attorney General

                                John Overton
                                Asst. District Attorney General
                                601 Main Street
                                Savannah, TN  38372                          

Judge: Hayes

First Paragraph:

AFFIRMED

The appellant, Robert Willis Chance, pled guilty to one count of
second degree murder and one count of attempted first degree murder. 
Pursuant to the plea agreement, the sentences were to be served
concurrently.  The Hardin County Circuit Court imposed a sentence of
twenty-three years for each conviction.   In his sole issue, the
appellant contends that the trial court erred in imposing twenty-three
year sentences because of the misapplication of Tenn. Code Ann. S
40-35-210 (1995 Supp.), regarding the presumptive sentence of a class
A felony.

URL:http://www.tba.org/tba_files/TCCA/chancerw_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
DANNY C. GREEN

Court:TCCA

Attorneys: 

PHILIP A. CONDRA                CHARLES W. BURSON
Public Defender                 Attorney General & Reporter
P.O. Box 220
Jasper, TN   37347              KAREN M. YACUZZO
                                Asst. Attorney General
                                450 James Robertson Pkwy.                               
                                Nashville, TN  37243-0493
                
                                J. MICHAEL TAYLOR
                                District Attorney General

                                STEVEN M. BLOUNT
                                Asst. District Attorney General
                                Franklin County Courthouse
                                Winchester, TN   37398                         

Judge: PEAY

First Paragraph:

AFFIRMED 

The defendant was indicted for violating the habitual traffic offender
act and for driving on a revoked license (DORL).  A jury found him
guilty of these offenses and the trial court determined that the DORL
was a fifth offense.  After a hearing, the defendant was sentenced as
a Range I standard offender to eighteen months in the Tennessee
Department of Correction on the habitual traffic offender violation,
and to eleven months, twenty-nine days at seventy-five percent on the
fifth offense DORL.  The sentences were ordered to run concurrently. 
Upon the defendant's motion for new trial, the trial court merged the
DORL offense into the habitual traffic offender offense and set aside
the misdemeanor judgment and sentence.

URL:http://www.tba.org/tba_files/TCCA/greendc_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
SONNY GREGORY

Court:TCCA

Attorneys: 

GERALD MELTON                   CHARLES W. BURSON
Public Defender                 Attorney General and Reporter

JEANNIE KAESS                   JENNIFER L. RAWLS
Assistant Public Defender       Assistant Attorney General
201 W. Main Street, Ste 101     450 James Robertson Parkway
Murfreesboro, TN 37129          Nashville, TN 37243-0493
                            

                                WILLIAM WHITESELL
                                District Attorney General

                                PAUL A. HOLCOMBE, III
                                Assistant District Attorney General
                                Suite 303
                                Murfreesboro, TN 37129                           

Judge: RILEY

First Paragraph:

AFFIRMED

This is an appeal from a judgment of the Criminal Court of Rutherford
County revoking defendant's probation and ordering him to serve an
eight-year sentence for the sale of cocaine.  Defendant contends the
trial court erred in (1) granting a continuance sua sponte to allow
the state to obtain additional witnesses; (2) admitting a laboratory
report and affidavit in violation of defendant's rights to confront
and cross-examine witnesses; and (3) concluding that the evidence was
sufficient to show a violation of the terms of probation by the use of
cocaine.

URL:http://www.tba.org/tba_files/TCCA/gregorys_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
FREDDIE HERRIMAN, and LORI SWAH 

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

ROBERT PETERS                   CHARLES W. BURSON
100 First Avenue S.W.           Attorney General and Reporter
Winchester, TN  37398           
                                WILLIAM DAVID BRIDGERS
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243

                                WILLIAM LOCKE
                                District Attorney General
    
                                THOMAS J. MINER
                                Assistant District Attorney
                                Professional Building
                                McMinnville, TN  37110
Judge: SMITH

First Paragraph:

AFFIRMED

Appellants Freddie Herriman and Lori Swah entered pleas of guilty in
the Warren County Circuit Court to offenses arising from the same set
of facts and have consolidated their cases for the purpose of appeal. 
Herriman pled guilty to carrying a weapon for the purpose of going
armed, possession of a Schedule II controlled substance with intent to
sell or deliver, and possession of drug paraphernalia.  As a Range I
standard offender, he received an effective sentence of five years in
the Tennessee Department of Correction.  The trial court ordered him
to serve twelve months of the sentence in the county jail with the
balance served on probation.  Swah pled guilty to simple possession of
a Schedule II controlled substance and possession of drug
paraphernalia.  She received an effective sentence of eleven months
and twenty-nine days in the county jail.  The trial court ordered her
to serve thirty days of the sentence in the county jail with the
balance served on probation.

URL:http://www.tba.org/tba_files/TCCA/herriman_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
NELSON JOSEPH LECLAIR

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:
R. STEVEN WALDRON               CHARLES W. BURSON
     -and-                      Attorney General & Reporter
TERRY A. FANN                           
202 West Main St.               KAREN M. YACUZZO
Murfreesboro, TN  37130         Asst. Attorney General                                  
								450 James Robertson Pkwy.
                                Nashville, TN  37243-0493

                                WILLIAM WHITESELL
                                District Attorney General

                                PAUL A. HOLCOMBE, III
                                Asst. District Attorney General
                                Third Fl., Judicial Bldg.
                                Murfreesboro, TN  37130                        

Judge: PEAY

First Paragraph:

AFFIRMED

The defendant was indicted on September 5, 1995, for driving under the
influence (DUI), second offense, and driving on a revoked license. 
The defendant pled guilty to DUI in exchange for the State's agreement
to dismiss the other charge.  After a hearing, he was sentenced to
eleven months, twenty-nine days in accordance with T.C.A. S
55-10-403(a)(1).  Forty-five days of his sentence were to be served in
the Rutherford County workhouse with the remainder to be served on
supervised probation.  The defendant was fined six hundred dollars
($600) and had his driving privileges revoked for two years.  Before
entering his guilty plea, the defendant, a Davidson County resident, 
asked that he be able to serve his sentence in Davidson County rather
than in Rutherford County.  The transfer was requested because the
defendant wanted to participate in Davidson County's work release
program.  The trial court denied this request.  It is from this denial
that the defendant now appeals.

URL:http://www.tba.org/tba_files/TCCA/leclairn_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
WILLIAM TERRY MARTIN

Court:TCCA

Attorneys:                          

FOR THE APPELLANT:              FOR THE APPELLEE:

MICHAEL D. RANDLES              CHARLES W. BURSON
Public Defender                 Attorney General and Reporter

CURTIS H. GANN                  M. ALLISON THOMPSON
Assistant Public Defender       Assistant Attorney General
P.O. Box 1119                   450 James Robertson Parkway
Fayetteville, TN 37334          Nashville, TN 37243

                                MIKE McCOWN
                                District Attorney General

                                ROBERT CRIGLER
                                Assistant District Attorney General
                                Bedford County Courthouse
                                Shelbyville, TN 37160
Judge: WELLES

First Paragraph:

AFFIRMED

The Defendant  brings this appeal pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  He was convicted by a Bedford County
jury of vehicular homicide.  He was sentenced as a Range I offender to
four years and nine months in the Bedford County Jail, seven years
probation and his license was suspended for seven years.   He appeals
his conviction, raising two issues: (1) That the evidence was
insufficient  to support a guilty verdict for vehicular homicide, in
particular, that he did not possess the requisite mens rea of
recklessness; and (2) that the trial court erred in refusing to grant
the Defendant's request for a special jury instruction.

URL:http://www.tba.org/tba_files/TCCA/martinw_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MELVIN D. PRESTON

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:


ROBERT S. PETERS                CHARLES W. BURSON
100 First Ave., Southwest       Attorney General & Reporter
Winchester, TN  37398
                                JANIS L. TURNER
                                Attorney for the State                                  
                                450 James Robertson Pkwy.
                                Nashville, TN  37243-0493

                                J. MICHAEL TAYLOR
                                District Attorney General

                                STEVEN M. BLOUNT
                                Asst. District Attorney General
                                1 South Jefferson St.
                                Winchester, TN  37398                            

Judge: PEAY

First Paragraph:

AFFIRMED

The defendant was indicted in January 1995 of driving under the
influence (DUI), sixth offense, driving on a revoked license, sixth
offense, and violation of the habitual traffic offender law.  After a
trial by jury, the defendant was convicted of driving under the
influence only.  He received a sentence of eleven months, twenty-nine
days with all but one hundred twenty days suspended.  The remainder of
the sentence was to be served on supervised probation.  Additionally,
the defendant was fined fifteen hundred dollars ($1500) and his
driving privileges were revoked for ten years.  In this appeal as of
right, the defendant alleges that the trial court erred by instructing
the jury on the "physical control" element of the DUI statute when the
indictment only charged the defendant with driving the vehicle rather
than being in physical control.

URL:http://www.tba.org/tba_files/TCCA/prestonm_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
GEORGE RHODES ROCHELLE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:               FOR THE APPELLEE:


CURTIS H. GANN                  CHARLES W. BURSON        
Asst. Public Defender           Attorney General & Reporter
P.O. Box 1119                                       
Fayetteville, TN  37334         EUGENE J. HONEA
     (On appeal)                Asst. Attorney General
                                450 James Robertson Pkwy.
JOHN DICKEY                     Nashville, TN  37243-0493
P.O. Box 1119
Fayetteville, TN  37334         W. MICHAEL MCCOWN                      
(At hearing)                    District Attorney General

                                WEAKLEY E. BARNARD
                                Asst. District Attorney General
                                Marshall County Courthouse
                                Lewisburg, TN  37091                            
Judge: PEAY

First Paragraph:

AFFIRMED

The defendant was indicted for aggravated sexual battery in violation
of T.C.A. S 39-13-504.  He entered a best interest plea to the offense
of attempted aggravated sexual battery, a Class C felony.  The
defendant agreed to a three year sentence as a part of the plea
agreement.  At the sentencing hearing, the defendant asked for
alternative sentencing, but his request was denied.  It is from this
denial that the defendant now appeals.

URL:http://www.tba.org/tba_files/TCCA/rochelle_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
SHANE WARREN WILSON

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:
SHANE WARREN WILSON, pro se         CHARLES W. BURSON
2045 Freeze Rd.                     Attorney General & Reporter
Morrison, TN   37357
                                    EUGENE J. HONEA
                                    Asst. Attorney General
                                    450 James Robertson Pkwy.
                                    Nashville, TN  37243-0493
            
                                    WILLIAM M. LOCKE
                                    District Attorney General

                                    TOM MINER
                                    Asst. District Attorney General
                                    Court Square            
                                    McMinnville, TN   37110                        

Judge: PEAY

First Paragraph:

AFFIRMED

The defendant was indicted for driving without a license and violating
the vehicle registration law.  A jury convicted him of these offenses.
 After a hearing, he was sentenced to thirty days in county jail on
each offense, to be served concurrently, and fined a total of one
hundred dollars ($100).  In this direct appeal, the defendant
complains that he was denied the right to counsel because his
appointed counsel refused to cooperate in his defense.

URL:http://www.tba.org/tba_files/TCCA/wilsonsw_opn.WP6

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