TBALink Opinion-Flash

February 13, 1997 -- Volume #3 -- Number #019

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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22-New Opinions From TCCA

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TBALink Chief Editor


COLEMILL ENTERPRISES, INC.
vs.
JOE HUDDLESTON, COMM

Court:TCA                        

Judge: LEWIS

First Paragraph:

Both the appellant, Colemill Enterprises, Inc., and the appellee, Joe
Huddleston, Commissioner, filed petitions to rehear this court's
opinion filed 4 December 1996.  Thereafter, this court entered an
order giving each of the parties ten days within which to file their
answers to the respective petitions to rehear.  We have now received
the answers to the petitions to rehear from both parties.

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

THOMAS A. DRIBER, Ph.D.
vs.
PHYSICIANS HEALTH CARE, INC., PHC, INC., d/b/a MILESTONE HEALTH
SERVICES, Z-2 CORPORATION, and Z CORPORATION

Court:TCA

Attorneys:

J. P. Barfield of Nashville
    For Appellant
Robert E. Boston of 
Waller, Lansden, Dortch & Davis in Nashville
    For Appellees                          

Judge: CRAWFORD

First Paragraph:

Plaintiff, Thomas J. Driber, Ph.D., appeals from the order of the
trial court granting summary judgment to the defendant.  The case is
before this Court for the third time because of previous procedural
defects. Basically the case involves a suit for damages for the
alleged breach of an employment agreement and a counter-claim by
defendant to recover on a promissory note.  DISMISSED IN PART,
AFFIRMED IN PART.

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

TINA R. GUFFEY
vs.
WENCO OF SHELBYVILLE, INC. d/b/a WENDY'S RESTAURANT

Court:TCA

Attorneys:

Richard Demonbreun, Attorney
1000 Demonbreun St., Suite 220
P.O. Box 23826
Nashville, TN 37202-3826
ATTORNEY FOR PLAINTIFF/APPELLEE

Steven A. Dix, Attorney
Suite 201, Court Square Building
201 W. Main Street
Murfreesboro, TN 37130
ATTORNEY FOR DEFENDANTS/APPELLANTS                          

Judge: TODD

First Paragraph:

This is a "slip and fall case" in which the jury awarded $173,250, and
the defendant appealed. The only issue on appeal is whether, in
response to a post-judgment motion, the Trial Judge erred in declining
to allow defendant a credit for $45,268.92 for amounts previously paid
to or on behalf of plaintiff by defendant's liability insurance
carrier. AFFIRMED AND REMANDED.

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

JOHNNY GLENN HILLIARD
vs.
MISTY LYNN HILLIARD and TERRY MINTON

Court:TCA

Attorneys:                          

James H. Bradberry,
BRADBERRY, CROWE & MacLEOD, Dresden, Tennessee
Attorney for Plaintiff/Appellant. 

Langdon S. Unger, Jr., Martin, Tennessee
Attorney for Defendants/Appellees.

Judge: FARMER

First Paragraph:

Johnny Glenn Hilliard (Father) appeals from the order of the trial
court granting visitation rights to his son's maternal grandmother. 
Father and Misty Lynn Hilliard (now Schrems) (Mother) married in 1992.
 Alexander Glenn Hilliard (Alex) was born in May 1993.  The parents
divorced in January, 1995 and temporary custody was awarded to Terry
Minton, the maternal grandmother.  At that time, Mother was living
with her mother, Terry Minton.  Mother currently resides in Florida
with her present husband. REMANDED.

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

JAMES P. MITCHELL
vs.
JAMES DAVENPORT, Commissioner of the Department 
of Employment Security of the State of Tennessee; NOMA 
OUTDOOR PRODUCTS, INC.

Court:TCA

Attorneys:                          

CONNIE WESTBROOK
THOMAS E. VORNBERGER
Memphis, Tennessee
Attorneys for Appellant

CHARLES W. BURSON
Attorney General & Reporter
KIMBERLY M. FRAYN
Pursuant to Rule 7 of the Rules 
of the Supreme Court of Tennessee
JENNIFER HELTON SMALL
Deputy Attorney General
Nashville, Tennessee
Attorneys for Appellee, State of Tennessee

CARY SCHWIMMER
KAREN W. GROCHAU
KIESEWETTER WISE KAPLAN SCHWIMMER & PRATHER, PLC
Memphis, Tennessee
Attorneys for Appellee, Noma Outdoor Products, Inc.

Judge: HIGHERS

First Paragraph:

In this unemployment compensation case, James Mitchell ("Mitchell")
filed a claim for unemployment compensation with the Tennessee
Department of Employment Security ("TDES").  TDES approved Mitchell's
claim, and Mitchell's employer, NOMA Outdoor Products, Inc. ("NOMA"),
appealed TDES' claim approval.  On appeal, the Appeals Tribunal ruled
that Mitchell was not eligible for unemployment benefits pursuant to
T.C.A. S 50-7-303(a)(2) due to work-connected misconduct and declared
that the $1,190.00 in unemployment benefits that Mitchell had
previously received was an overpayment.  Mitchell thereafter requested
that TDES waive his $1,190.00 overpayment pursuant to T.C.A. S
50-7-303(d)(2).  The Appeals Tribunal denied Mitchell's request for a
waiver of the overpayment, and Mitchell appealed the decision of the
Appeals Tribunal to the Board of Review. The Board of Review
adopted the findings of fact and decision of the Appeals Tribunal and
denied Mitchell's request for a waiver of the overpayment.  Mitchell
thereafter filed a petition to rehear which was denied by the Board of
Review. AFFIRMED.

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

JAMES T. MORRIS
vs.
BOARD OF EDUCATION OF THE 
METROPOLITAN NASHVILLE PUBLIC SCHOOLS

Court:TCA

Judge: TODD

First Paragraph:

Plaintiff/appellee, James T. Morris, has filed a motion for
consideration of post judgmetn facts which this court has considered
and finds to be without merit. It is therefore ordered that the motion
be and the same is denied.

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

E. SHARON SANFORD
vs.
METROPOLITAN GOVERNMENT OF NASHVILLE and DAVIDSON COUNTY; CORY
McCLELLAN individually, and in his official capacity; and CHARLES
STEVENS, individually, and in his official capacity

WITH ORDER


Court:TCA

Attorneys: 

RICHARD W. MATTSON
Levine, Mattson, Orr & Geracioti
210 Third Avenue, North
P. O. Box 190683
Nashville, Tennessee 37219-0683

CINDY L. PORTER
5519 Hill Court
Nashville, Tennessee 37220
    ATTORNEYS FOR PLAINTIFF/APPELLANT

JAMES L. CHARLES
Associate Metropolitan Attorney
Metropolitan Department of Law
204 Metropolitan Courthouse
Nashville, Tennessee 37201

E. JOSEPH FITZPATRICK, JR.
Suite 2828 Renaissance Tower
611 Commerce Street
Nashville, Tennessee 37203
    ATTORNEYS FOR DEFENDANTS/APPELLEES                         

Judge: LEWIS

First Paragraph:

Plaintiff/appellant, E. Sharon Sanford, appeals numerous decisions
made by the Circuit Court for Davidson County.  During the
proceedings, the court dismissed two defendants, dismissed Mrs.
Sanders' constitutional deprivation claim, and ordered
defendant/appellee, the Metropolitan Government of Nashville and
Davidson County ("Metro"), to pay twenty percent of Mrs. Sanders'
discretionary costs.  In its final judgment, the court allocated the
fault between the parties.  Mrs. Sander's contends that the court
erred in making each of these decisions. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.

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

WILLIAM THOMAS WINCHESTER
VS.
GLENDA RACHELLE WINCHESTER

Court:TCA

Attorneys:    

For the Plaintiff/Appellant:    For the Defendant/Appellee:
Tim Edwards                     Michael L. Weinman
Memphis, Tennessee              Henderson, Tennessee
                                        
Judge:  LILLARD

First Paragraph:

This is a child custody case.  The trial court awarded Appellant
William Thomas Winchester ("Husband") and Appellee Glenda Rachelle
Winchester ("Wife") joint custody of the minor child of the marriage,
which both parties appeal.  We vacate the trial court's award of joint
custody and remand the case to the trial court to conduct further
findings of fact concerning each party's comparative fitness and to
award custody to either Husband or Wife.  VACATED AND REMANDED.

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

LOUIS WILLIAM ALFORD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:     

FOR THE APPELLANT:              FOR THE APPELLEE:
RICK G. MANSFIELD               CHARLES W. BURSON
110 South Maple Street          Attorney General and Reporter
Murfreesboro, TN 37388

                                LISA A. NAYLOR
                                Assistant Attorney General
                                450 James Robertson Pkwy.
                                Nashville, TN 37243-0493

                                C. MICHAEL LAYNE
                                District Attorney General
                                P. O. Box 147
                                Manchester, TN 37355                     

Judge: RILEY

First Paragraph:

This is an appeal from the dismissal of appellant's petition seeking
post conviction relief.  The sole issue is whether appellant was
deprived of effective assistance of counsel when he was convicted of
second degree murder.  We concur with the trial court's finding that
appellant had effective assistance of counsel; therefore, we affirm
the dismissal of the petition for post-conviction relief. AFFIRMED.

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

STATE OF TENNESSEE
vs.        
BILLIE AUSTIN a/k/a BILLY AUSTIN

Court:TCCA

Attorneys: 

For the Appellant:              For the Appellee:

John E. Appman                  Charles W. Burson
P.O. Box 99                     Attorney General & Reporter
Jamestown, TN  38556
                                Michael J. Fahey, II                
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493  


                                William E. Gibson
                                District Attorney General

                                John Nisbet
                                Assistant District Attorney General
                                145 S. Jefferson St.
                                Cookeville, TN  38556                         

Judge: BYERS

First Paragraph:

The defendant was convicted of the following offenses and sentenced to
serve a term in the penitentiary as set out: Attempted first degree
murder - 25 years Attempted arson - 4 years Possession of a prohibited
weapon - 2 years Possession of a weapon with intent to employ it in
the commission of a felony  - 2 years The defendant was sentenced
as a standard range I offender and each of the sentences was ordered
to be served concurrently with each for an effective sentence of 25
years. AFFIRMED.

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

WILLIAM EDWARD BLAKE
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:          	FOR THE APPELLEE:

WILLIAM EDWARD BLAKE        	CHARLES W. BURSON
Pro-Se                      	Attorney General and Reporter
MCRCF Box 2000
Wartburg, TN 37887          	EUGENE J. HONEA
                            	Assistant Attorney General
                            	450 James Robertson Parkway
                            	Nashville, TN 37243-0493

                            	RANDALL E. NICHOLS
                            	District Attorney General
                            	City-County Building
                            	Knoxville, TN 37902                        

Judge: WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant filed his third petition for
post-conviction relief on November 29, 1995.  Shortly thereafter, the
trial court summarily dismissed the petition as barred by the statute
of limitations.  It is from the order of dismissal that the Defendant
appeals.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
WILLIE LEE BOBO

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:
William W. Nowlin               Charles W. Burson
Attorney at Law                 Attorney General & Reporter 
100 N Main Building
Memphis, TN 38103               John P. Cauley
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493
    
                                William L. Gibbons
                                District Attorney General (Present)

                                John W. Pierotti 
                                District Attorney General (Former)

                                Terrell L. Harris   
                                Asst. Dist. Attorney General
                                201 Poplar - Third Floor
                                Memphis, TN 38103                           

Judge: SUMMERS

First Paragraph:

The appellant, Willie Lee Bobo, was convicted by a jury of DUI and
carrying a pistol.  He made a motion for new trial.  The trial court
denied the motion.  The sole issue raised on appeal is whether the
trial court correctly exercised its role as thirteenth juror in
sustaining his conviction.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE
vs.
JOHN HAWS BURRELL

Court:TCCA

Attorneys: 

For Appellant:              	For Appellee:
Billy P. Sams               	Charles W. Burson
Attorney                    	Attorney General & Reporter
122-A Jefferson Court
Oak Ridge, TN  37830        	Eugene J. Honea
                            	Assistant Attorney General
                            	Criminal Justice Division
                            	450 James Robertson Parkway
                           	 	Nashville, TN  37243-0493

                            	Jan Hicks 
                            	Assistant District Attorney General
                            	Anderson County Courthouse
                            	Clinton, TN  37716                         

Judge: WADE

First Paragraph:

The defendant, John Haws Burrell, was convicted of twelve counts of
sexual battery, three counts of rape, and two counts of coercion of a
witness.  The trial court imposed Range I sentences of one year for
each of the sexual battery convictions, nine years for each of the
rape convictions, and three years for each of the convictions for
coercion of a witness.  The trial court imposed partial consecutive
sentencing.  We calculate the effective sentence at 24 years.
AFFIRMED.

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

DOYLE CARTER
vs.
STATE OF TENNESSEE

WITH CONCURRING OPINION


Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:
DOYLE CARTER, pro se            CHARLES W. BURSON
Regional Correctional FA        Attorney General & Reporter
Route 4, Box 600
Pikeville, TN 37367             LISA A. NAYLOR
                                Asst. Attorney General
                                450 James Robertson Pkwy.
                                Nashville, TN 37243-0493

                                VICTOR S. JOHNSON, III
                                District Attorney General

                                CHERYL BLACKBURN
                                Deputy District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue, N.
                                Nashville, TN 37201-1649                        

Judge: RILEY

First Paragraph:

Petitioner is serving a sentence for second degree murder.  He seeks
post conviction relief alleging ineffective assistance of counsel and
an unconstitutional jury charge defining "reasonable doubt."  The
trial court dismissed the petition without a hearing finding that the
petition was barred by the statute of limitations. AFFIRMED.

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

STATE OF TENNESSEE
VS.
RANDY EUGENE FAUBION

Court:TCCA

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

Brandt W. Davis                     Charles W. Burson
Attorney at Law                     Attorney General & Reporter
1707 Cove Creek Lane, Suite 2       500 Charlotte Avenue
Knoxville, TN 37919                 Nashville, TN 37243-0497

                                    Darian B. Taylor
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Randall E. Nichols
                                    District Attorney General
                                    City-County Building
                                    404 Main Avenue
                                    Knoxville, TN 37902

                                    William H. Crabtree
                                    Asst District Attorney General
                                    City-County Building
                                    404 Main Avenue
                                    Knoxville, TN 37902                         

Judge: Jones

First Paragraph:

Petitioner is serving a sentence for second degree murder.  He seeks
post conviction relief alleging ineffective assistance of counsel and
an unconstitutional jury charge defining "reasonable doubt."  The
trial court dismissed the petition without a hearing finding that the
petition was barred by the statute of limitations.

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

STATE OF TENNESSEE
VS.
ALLAN M. FYFE, JR.

Court:TCCA

Attorneys:    

FOR THE APPELLANT:          FOR THE APPELLEE:
Mark L. Pittman             Charles W. Burson
Attorney at Law             Attorney General & Reporter 
295 Washington #2
Memphis, TN 38103           Peter M. Coughlan
                            Assistant Attorney General
                            Criminal Justice Division
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493
    
                            William L. Gibbons
                            District Attorney General (Present)

                            John W. Pierotti
                            District Attorney General (Former)
    
                            Karen Cook  
                            Asst. Dist. Attorney General
                            Criminal Justice Complex, Suite 301
                            201 Poplar
                            Memphis, TN 38103                      

Judge: SUMMERS

First Paragraph:

The appellant, Allan Fyfe, Jr., was convicted by a jury of driving
under the influence and reckless driving.  He raises two issues on
appeal:  (1) whether the evidence was sufficient to convict; and (2) 
whether the trial court erred in failing to admit a witness'
testimony. AFFIRMED.

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

JOHN WESLEY GOSS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

For the Appellant:              For the Appellee:
Herbert S. Moncier              Charles W. Burson
775 Nations Bank Center         Attorney General of Tennessee
550 Main Avenue                 and
Knoxville, TN 37902             Hunt S. Brown
(AT TRIAL & ON APPEAL           Assist Attorney General of Tennessee                   
								 450 James Robertson Parkway     
                                Nashville, TN 37243-0493
David S. Wigler
775 Nations Bank Center         Randall E. Nichols
550 Main Avenue                 District Attorney General
Knoxville, TN 37902             and
(ON APPEAL)                     Andrew Jackson
                                Assistant District Attorney General
                                City-County Building
                                Knoxville, TN 37902                          

Judge: Tipton

First Paragraph:

The petitioner, John Wesley Goss, appeals as of right from the denial
of his petition for post-conviction relief by the Criminal Court for
Knox County.  He was originally convicted in February 1994, upon his
guilty pleas pursuant to an agreement, of three counts of simple
possession of controlled substances, and he received three consecutive
eleven months and twenty-nine days sentences to be served on
probation.  AFFIRMED.

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

DOYLE LEE HAMM
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:

FOR THE APPELLANT:              	FOR THE APPELLEE:
Paul Morrow                     	Charles W. Burson
Attorney at Law                 	Attorney General & Reporter 
1505 Compton Avenue
Nashville, TN 37212-4505        	Darian B. Taylor
                                	Assistant Attorney General
Bernard Harcourt (Pro hac vice) 	Criminal Justice Division
Attorney at Law                 	450 James Robertson Parkway
107 Holden Green                	Nashville, TN 37243-0493
Cambridge, MA 02138
                                	T. Michael Bottoms
                               	 	District Attorney General

                                	James G. White II
                                	Asst. Dist. Attorney General    
                                	P.O. Box 459
                                	Lawrenceburg, TN 38464                          

Judge: SUMMERS

First Paragraph:

The appellant, Doyle Lee Hamm, was indicted in 1977 for:  burglary;
three counts of first degree burglary; two counts of armed robbery;
second degree burglary; grand larceny; carrying a deadly weapon; and
larceny.  Pursuant to a negotiated plea, he pled guilty to two counts
of simple robbery in 1978.  He was sentenced to five years on each
count.  Both sentences have been fully served.  In 1992, the appellant
petitioned for post-conviction relief.  The trial court dismissed the
petition as untimely. AFFIRMED.

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

STATE OF TENNESSEE
vs.
FLOYD LEON HYATTE

Court:TCCA

Attorneys:    

FOR THE APPELLANT               FOR THE APPELLEE

Nathan Brooks                   Charles W. Burson
615 Lindsey Street              Attorney General and Reporter
Chattanooga, Tennessee 37402    450 James Robertson Parkway
                                Nashville, TN 37243-0493
                    
                                Robin L. Harris                                     
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, Tennessee 37243-0493

                                J. Michael Taylor
                                District Attorney General
                                265 Third Avenue
                                Dayton, Tennessee 37321

                                James W. Pope, III
                                Assistant District Attorney General
                                265 Third Avenue
                                Dayton, Tennessee 37321                      

Judge: Barker

First Paragraph:

The Appellant, Floyd Leon Hyatte, appeals as of right his conviction
of first degree murder.  He was sentenced to life in prison.  The
arguments presented on appeal are: (1) The Appellant's Fifth
Amendment right against self-incrimination was violated when, during
jury deliberations, the foreman of the jury commented that the
appellant would have testified on his own behalf if he had not been
guilty. (2) The State suppressed exculpatory evidence when it
caused or permitted the victim's jacket to be destroyed. (3) The
Appellant was convicted solely on uncorroborated accomplice testimony.
After reviewing the record on appeal, we find no reversible error and,
therefore, affirm the trial court's judgment.

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

STATE OF TENNESSEE
vs.
JIMMY LEE JONES

Court:TCCA

Attorneys: 

FOR THE APPELLANT               FOR THE APPELLEE

Nathan Brooks                   Charles W. Burson
615 Lindsey Street              Attorney General and Reporter
Chattanooga, Tennessee 37402    450 James Robertson Parkway
                                Nashville, Tennessee 37243-0493
                    
                                Robin L. Harris                                     
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, Tennessee 37243-0493

                                J. Michael Taylor
                                District Attorney General
                                265 Third Avenue
                                Dayton, Tennessee 37321

                                James W. Pope, III
                                Assistant District Attorney General
                                265 Third Avenue
                                Dayton, Tennessee 37321                         

Judge: Barker

First Paragraph:

Appellant, Jimmy Lee Jones, appeals as of right his convictions in the
Davidson County Criminal Court of two counts of aggravated child
abuse.  He received the minimum sentence of eight years on each
offense as a Range I standard offender.  The sentences were ordered to
run concurrently.

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

TOMMY L. KING
vs.
STATE OF TENNESSEE

WITH CONCURRING OPINION


Court:TCCA

Attorneys:  

FOR THE APPELLANT:          	FOR THE APPELLEE:
Shara Ann Flacy             	Charles W. Burson
District Public Defender    	Attorney General & Reporter 

Daniel J. Runde             	John P. Cauley
Assistant Public Defender   	Assistant Attorney General
P.O. Box 1208               	450 James Robertson Parkway
Pulaski, TN 38478           	Nashville, TN 37243-0493
    
Robert D. Massey            	T. Michael Bottoms
Attorney at Law             	District Attorney General
P.O. Box 409                	P.O. Box 459
Pulaski, TN 38478           	Lawrenceburg, TN 38464  
                        
Judge: SUMMERS

First Paragraph:

The appellant, Tommy L. King, was indicted for felony murder, first
degree murder, and armed robbery.  He was convicted of felony murder
and sentenced to death.  The Tennessee Supreme Court affirmed his
conviction and sentence.  The appellant's first post-conviction relief
petition was denied.  The appellant filed a second petition for
post-conviction relief.  The trial court denied relief and dismissed
the petition. AFFIRMED.

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

STATE OF TENNESSEE
vs.
LYNDA GAYLE KIRKLAND

Court:TCCA

Attorneys:    

For the Appellee:               	For the Appellant:

James A. H. Bell                	Charles W. Burson
Jackson L. Case, IV             	Attorney General and Reporter
110 W. Summit Hill Drive    
Knoxville, TN  37902            	Elizabeth T. Ryan
                                	Assistant Attorney General                          
                                	Criminal Justice Division
                               		450 James Robertson Parkway
                                	Nashville, TN 37243-0493                
                        
                                	Randall E. Nichols
                                	District Attorney General

                                	Jeff Blevins
                                	Asst. District Attorney General
                                	City-County Building
                                	Knoxville, TN 37902                      

Judge: Hayes

First Paragraph:

The appellee, Lynda Gayle Kirkland, pled guilty in the Knox County
Criminal Court to theft of property over $60,000 and to computer fraud
over $60,000, both class B felonies.  Following the sentencing
hearing, the trial court imposed concurrent eight year sentences for
each conviction with all time suspended except for nine months which
were ordered to be served in the Knox County Penal Farm at one hundred
percent.  Additionally, the appellee was placed on supervised
probation with various conditions for a period of twelve years,
including payment of restitution in the amount of $202,096.75.
AFFIRMED.

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

STATE OF TENNESSEE
vs.
ROY MCCAMEY

Court:TCCA

Attorneys:  

For the Appellant:              	For the Appellee:
Stacy L. Street                 	Charles W. Burson
Attorney for Appellant          	Attorney General and Reporter
Hampton & Street    
630 Elk Avenue                  	Darian B. Taylor
Elizabethton, TN  37643         	Assistant Attorney General                          
									Criminal Justice Division
                                	450 James Robertson Parkway
                                	Nashville, TN 37243-0493                
                        
                                	David E. Crockett
                                	District Attorney General

                                	Steven R. Finney
                                	Asst. District Attorney General
                                	Courthouse Annex
                                	Elizabethton, TN  37243                        

Judge: Hayes

First Paragraph:

The appellant, Roy McCamey, appeals the judgment entered by the Carter
County Criminal Court approving a jury verdict finding the appellant
guilty of possession of contraband in a penal facility.  Tenn. Code
Ann. S 39-16-201 (1991). The appellant submits two issues for our
review: first, whether his conviction, which was based upon "aiding
and abetting the possession of contraband of another," can stand when
the only action on his part occurred after the crime of possession of
contraband in a penal facility had been completed; second, whether the
trial court erred in denying the appellant's request for a special
jury charge defining the term "possession." REVERSED AND REMANDED.

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

STEVE MOSLEY
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          	FOR THE APPELLEE:
D. NATHANIEL SPENCER        	CHARLES W. BURSON
P. O. Box 865,              	Attorney General and Reporter
28 S. Washington
Brownsville, TN  38012      
                            	DARIAN B. TAYLOR
                           	 	Assistant Attorney General
                            	450 James Robertson Parkway
                            	Nashville, TN  37243

                           		DAN ALSOBROOKS
                            	District Attorney General

                            	SUZANNE M. LOCKERT
                            	Assistant District Attorney
                            	105 Sycamore Street
                            	Ashland City, TN  37015                         

Judge: SMITH

First Paragraph:

Appellant Steve Mosley appeals from the denial of his petition for
post conviction relief.  Appellant was convicted by a jury of two
counts of selling cocaine, one count of conspiracy to distribute
cocaine, and one count of misdemeanor possession of cocaine.  He was
sentenced as a Range II offender to a total of twenty-four years
incarceration.  On September 9, 1993, this Court affirmed Appellant's
conviction.  State v. Mosley, No. 01C01-9211 CC-00345, 1993 WL 345542,
at *8 (Tenn. Crim. App. Sept. 9, 1993), perm. to app. den., (Tenn.
1994).  On February 28, 1995, Appellant filed a pro se petition for
post-conviction relief alleging ineffective assistance of counsel and
other issues not raised in this appeal.  Counsel was appointed and an
evidentiary hearing held.  The post-conviction court dismissed the
petition on May 23, 1995.  For the reasons discussed below, we reject
Appellant's claims and affirm the decision of the post-conviction
court. AFFIRMED.

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

ERIC C. PENDLETON
vs.
STATE OF TENNESSEE

WITH CONCURRING OPINION


Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:
ERIC C. PENDLETON, pro se           CHARLES W. BURSON
R.M.S.I.                            Attorney General and Reporter
7475 Cockrill Bend
Industrial Road                     EUGENE J. HONEA
Nashville, TN  37209-1010           Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    ROGER D. MOORE
                                    Asst. District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, N.
                                    Nashville, TN  37201-1649
Judge: RILEY

First Paragraph:

The petitioner, Eric C. Pendleton, appeals the order of the Criminal
Court of Davidson County dismissing his petition for a writ of habeas
corpus.  He was sentenced in July 1987 to serve a life sentence plus
six (6) years for first degree murder and aggravated assault.  Because
the trial court found that the petitioner was in the lawful custody of
the Tennessee Department of Correction, the court dismissed the writ
without a hearing.  The trial court also treated the petition as one
for post-conviction relief and found it was time-barred by the
three-year statute of limitations.  AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/PENDLETO_OP2.WP6
URL:http://www.tba.org/tba_files/TCCA/PENDLETO_CON.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
BENNY SLUDER

Court:TCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:
Walter B. Johnson, II           Charles W. Burson
Assistant Public Defender       Attorney General & Reporter
P.O. Box 334                    500 Charlotte Avenue
Harriman, TN 37748              Nashville, TN 37243-0497

OF COUNSEL:                     Eugene J. Honea
                                Assistant Attorney General
Joe H. Walker                   450 James Robertson Parkway
District Public Defender        Nashville, TN 37243-0493
P.O. Box 334                    
Harriman, TN 37748              Charles E. Hawk
                                District Attorney General
                                P.O. Box 703
                                Kingston, TN 37763

                                Frank A. Harvey
                                Assistant District Attorney General
                                P.O. Box 703
                                Kingston, TN 37763                          

Judge: Jones

First Paragraph:

The issue this Court must resolve is whether the appellant, Benny
Sluder, is entitled to maintain this appeal after he failed to comply
with the requirements of Rule 37(b)(2), Tennessee Rules of Criminal
Procedure and State v. Preston, 759 S.W.2d 647 (Tenn. 1988) until
approximately eight (8) months after the entry of the judgment.  After
a thorough review of the record, the briefs of the parties, and the
authorities which govern this issue, it is the opinion of this Court
the appellant's appeal must be dismissed.

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

STATE OF TENNESSEE
vs.
BILLY JOE SMITH

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:
William B. Lawson           Charles W. Burson
112 Gay Street              Attorney General & Reporter
P. O. Box 16                500 Charlotte Avenue
Erwin, TN 37650             Nashville, TN 37243-0497

                            Eugene J. Honea
                            Assistant Attorney General
                            450 James Robertson Parkway
                            Nashville, TN 37243-0493

                            David E. Crockett
                            District Attorney General
                            Route 19, Box 99
                            Johnson City, TN 37601

                            Lisa D. Nidiffer
                            Assistant District Attorney General
                            Unicoi County Courthouse
                            Erwin, TN 37650

                            Steven R. Finney
                            Assistant District Attorney General
                            Carter County Courthouse Annex
                            Elizabethton, TN 37643                         

Judge: Jones

First Paragraph:

The appellant, Billy Joe Smith, was convicted of two counts of
aggravated rape, a Class A felony, aiding and abetting aggravated
rape, a Class A felony, aggravated kidnapping, a Class B felony, and
aggravated robbery, a Class B felony, by a jury of his peers.  The
trial court found that the appellant was a persistent offender.
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/SMITHBJ2_OPN.WP6
Opinion-Flash

JOHNNY TILLMAN
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

For the Appellant:              For the Appellee:
Douglas A. Trant                Charles W. Burson
900 S. Gay St.                  Attorney General and Reporter
Suite 1502                          
Knoxville, TN 37902
                                Eugene Honea
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                Randall E. Nichols
                                District Attorney General
                                P.O. Box 1468
                                Knoxville, TN 37901-1468
                            
Judge: Barker

First Paragraph:

The appellant, Johnny Tillman, appeals the dismissal of his
post-conviction petition filed in the Criminal Court of Knox County. 
The trial court summarily dismissed appellant's petition because it
was filed outside the applicable statute of limitations.  Finding no
error in the trial court's ruling, we affirm the dismissal of the
petition.

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

STATE OF TENNESSEE
vs.
JEFFERY WALTERS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:
Barton E. Kelly                 Charles W. Burson
Attorney at Law                 Attorney General & Reporter 
102 West 7th Street
P.O. Box 692                    William David Bridgers
Columbia, TN 38402-0692         Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Joseph D. Baugh
                                District Attorney General

                                Mark L. Puryear, III
                                Asst. Dist. Attorney General
                                P.O. Box 937
                                Franklin, TN 37065-0937
                         

Judge: SUMMERS

First Paragraph:

The appellant, Jeffery Walters, was indicted on one count of filing a
false police report, two counts of filing fraudulent insurance claims,
one count of conspiracy to file false insurance claims, and one count
of destroying a manufacturer's vehicle identification number.  The
appellant sought pretrial diversion, which was denied by the district
attorney general.  The appellant sought review of the denial, and the
trial judge affirmed the action of the district attorney general.  The
appellant sought and received an interlocutory appeal by permission of
the trial court pursuant to Rule 9, Tenn. R. App. P. AFFIRMED.

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

JOHNNY WARD
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:
Geoffrey Coston                 Charles W. Burson
Attorney at Law                 Attorney General & Reporter 
2813 West End Avenue
Nashville, TN 37203             M. Allison Thompson
                                Counsel for the State
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Victor S. (Torry) Johnson III 
                                District Attorney General

                                Mary Hausman
                                Asst. Dist. Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue North
                                Nashville, TN 37201-1649                         

Judge: SUMMERS

First Paragraph:

The appellant, Johnny Ward, was convicted by a jury of second degree
murder.  His conviction was affirmed on appeal.  He filed for
post-conviction relief alleging ineffective assistance of counsel. 
The trial court conducted an evidentiary hearing and denied the
appellant relief.  Upon review, we affirm.

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

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