TBALink Opinion-Flash

April 27, 1997 -- Volume #3 -- Number #047

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.

This Issue IN THIS ORDER:
04-New Opinions From TSC
00-New Opinions From TSC-Rules
10-New Opinions From TSC-Workers Comp Panel
04-New Opinions From TCA
20-New Opinions From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs.
MICHAEL DEAN BUSH

Court:TSC

First Paragraph:

A petition for rehearing has been filed on behalf of appellant.  After
consideration of the same, the Court is of the opinion that the
petition should be and the same is hereby denied at the cost of
appellant.

URL:http://www.tba.org/tba_files/TSC/BUSH_ORD.WP6
Opinion-Flash

ROBERT DALE COBB
vs.
DOUGLAS R. BEIER

Court:TSC

Attorneys:   

FOR PLAINTIFF-APPELLANT:            FOR DEFENDANT-APPELLEE:

J. Randall Shelton                  James M. Davis
Morristown, Tennessee               Morristown, Tennessee                       

Judge: DROWOTA

First Paragraph:

The sole issue on appeal is whether the Court of Appeals erred by
dismissing this appeal because of plaintiff-appellant's failure to
serve the clerk of the appellate court with a copy of the notice of
appeal in compliance with Rule 5(a) of the Tennessee Rules of
Appellate Procedure.  Several cases with similar issues are currently
pending before this Court and the Court of Appeals.  Because service
of the notice of appeal upon the clerk of the appellate court serves
no significant substantive purpose in the appellate process, failure
to effect such service is not a basis for dismissal of an appeal. 
Therefore, the judgment of the Court of Appeals is reversed and this
cause remanded to that court for consideration of the merits of the
appeal. REVERSED & REMANDED.

URL:http://www.tba.org/tba_files/TSC/COBB_OPN.WP6
Opinion-Flash

LAWRENCE MOORE
vs.
STATE OF TENNESSEE

Court:TSC

Attorneys:  

For Appellee:                       For Appellant:

MARK E. STEPHENS                    JOHN KNOX WALKUP
Public Defender                     Attorney General and Reporter

PAULA R. VOSS                       MICHAEL E. MOORE    
Assistant Public Defender           Solicitor General
Knoxville, TN
                                    GORDON W. SMITH
                                    Associate Solicitor General
                                    Nashville, TN

                                    RANDALL E. NICHOLS
                                    District Attorney General

                                    ZANE SCARLETT
                                    Assistant District Attorney
                                     General
                                    Knoxville, TN                        

Judge: BIRCH

First Paragraph:

In 1994, Lawrence Moore, the petitioner, filed a pro se petition for
habeas corpus relief alleging that his 1983 convictions for robbery
and kidnapping violated his due process rights under the state
constitution.  Treating the petition as one for post-conviction
relief, the trial court concluded that the statute of limitations
barred consideration of the claim and dismissed the petition.  The
Court of Criminal Appeals found that the petition raised a claim under
State v. Anthony, 817 S.W.2d 299 (Tenn. 1991).  In addition, the
intermediate court held that Anthony announced a new constitutional
rule that applied retroactively, and therefore, under Burford v.
State, 845 S.W.2d 204 (Tenn. 1992), and Sands v. State, 903 S.W.2d 297
(Tenn. 1995), Moore's petition was timely.  We granted the State's
application for permission to appeal. JUDGMENT OF THE COURT OF
CRIMINAL APPEALS REVERSED; PETITION DISMISSED.

URL:http://www.tba.org/tba_files/TSC/MOORE_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
BARRY L. SPECK

Court:TSC

Attorneys:

For Appellant:                      For Appellee:

C. Anne Tipton                      John Knox Walkup
Memphis, Tennessee                  Attorney General & Reporter
                        
A. C. Wharton, Jr.                  Michael E. Moore
Public Defender                     Solicitor General
            
Walker Gwinn                        Gordon W. Smith
Assistant Public Defender           Associate Solicitor General
Memphis, Tennessee                  Nashville, Tennessee
            
At Trial:                           John W. Pierotti
B. Alan Newport                     District Attorney General
Assistant Public Defender
Memphis, Tennessee                  Jennifer Nichols
                                    Asst District Attorney General
                                    Memphis, Tennessee                          

Judge: ANDERSON

First Paragraph:

We granted this appeal to review two issues: first, whether the bill
of particulars sufficiently informed the defendant of the charges
against him, and second, whether reversible error was committed when
the trial court, applying the "fresh complaint" doctrine, ruled that
the victim's out-of-court statements to his mother regarding sexual
acts committed by the defendant were admissible to corroborate his
in-court testimony. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC/SPECK_OPN.WP6
Opinion-Flash

MADIA J. BLANKEN
vs.
PHILIPS CONSUMER ELECTRONICS
CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellee:

Arthur G. Seymour, Jr.              Lynn Bergwerk
Robert L. Kahn                      713 Market Street, Suite 120
P. O. Box 39                        Knoxville, TN 37902
Knoxville, TN 37901
                         
Judge: BYERS

First Paragraph:

Plaintiff injured her left arm at work on February 28, 1992. When
surgery did not improve the condition or decrease her pain she became
markedly depressed. The trial court found that plaintiff's depression
was related to her arm injury and awarded her 100 percent permanent
total disability based on the two conditions. We affirm the judgment
of the trial court. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/BLANKEN_OPN.WP6
Opinion-Flash

BLAINE BRACKINS
vs.
SEVIER COUNTY, TENNESSEE,   
SEVIER COUNTY BOARD OF 
EDUCATION and LOCAL 
GOVERNMENT WORKERS' 
COMPENSATION FUND

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellant:                  For the Appellees:

Richard T. Wallace                  Elizabeth A. Townsend
Ogle & Wallace, P.C.                Gerald L. Gulley, Jr.
121 Court Ave.                      Baker, McReynolds, Byrne, O'Kane,
Sevierville, TN  37862              Shea & Townsend
                                    P.O. Box 1708
                                    Knoxville, TN  37901-1708

Judge: BYERS

First Paragraph:

The trial judge found that plaintiff was 50% permanently partially
disabled as a result of his work-related injury by accident.  He
further found that the workers' compensation carrier was entitled to a
credit of $104,430.64, plaintiff's net recovery for his third-party
tort settlement.  He held that he could not exclude recovery for loss
of consortium from plaintiff's net recovery because no specific amount
of that recovery was apportioned to loss of consortium.  He limited
the recovery for medical expenses to plaintiff's out-of-pocket
expenses.  He granted the plaintiff's attorney a 20% fee from the
medical expenses awarded and stated that plaintiff's attorney may have
to look to plaintiff's attorney in the third-party action for the rest
of his fee. AFFIRMED IN PART, REVERSED IN PART and REMANDED.

URL:http://www.tba.org/tba_files/TSC_WCP/BRACKINS_OPN.WP6
Opinion-Flash

BRUNSWICK MARINE
vs.                            
KENNETH W. MILLER

Court:TSC - Workers Comp Panel

Attorneys: 

FOR THE APPELLANT:                  FOR THE APPELLEE:

DANIEL C. TODD                      LARRY D. CRAIG        
219 Second Avenue North             THOMAS J. DRAKE, JR.  
Suite Three Hundred                 305 Fourteenth Avenue, North
Nashville, Tennessee 37201          Nashville, Tennessee 37203                         

Judge: RUSSELL

First Paragraph:

Brunswick Marine, the employer of Kenneth w. Miller, filed a petition
seeking to have the court judge that Mr. Miller's work related injury
did not occur in the course and scope of his employment.  AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/BRUNSWIC_OPN.WP6
Opinion-Flash

STONE CONTAINER CORPORATION
vs.
NEIL GRIFFITH

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellant                   For the Appellee:

J. Bartlett Quinn                   Thomas L. Wyatt
Cynthia D. Hall                     Summers, McCrea & Wyatt
800 Vine Street                     500 Lindsay St.
Chattanooga, TN  37403                             

Judge: THAYER

First Paragraph:

The employer, Stone Container Corporation, has perfected this appeal
from a decision of the trial court to award the employee, Neil
Griffith, 10% permanent partial disability benefits to the body as a
whole. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/GRIFFITH_OPN.WP6
Opinion-Flash

CAROLYN F. HUMPHRIES
vs.
KFC USA INC.

WITH JUDGMENT ORDER


Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                    For the Appellee:

Daniel C. Todd                        David Burlison
Evans & Todd                          Abbott & Burlison
Suite Three Hundred                   6263 Poplar Avenue
219 Second Avenue North               Suite 1130
Nashville, TN 37201                   Memphis, TN 38119
                        

Judge: THAYER

First Paragraph:

The trial court awarded the plaintiff 30% permanent partial disability
to the body as a whole.  The plaintiff was also awarded medical
expenses she had to pay herself.  Plaintiff's group insurance had paid
a part of the medical expenses regarding plaintiff's March, 1994 back
treatment, resulting in surgery and subsequent follow-up care.  The
trial court did not award any amount for temporary total benefits.
AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/HUMPHRIC_OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/HUMPHRIC_JDG.WP6
Opinion-Flash

JOY G. JOHNSON
vs.
GOODWILL INDUSTRIES-KNOXVILLE, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant                   For the Appellee:

Garry W. Ferraris                   Elizabeth Townsend
P.O. Box 259                        Gerald L. Gulley, Jr.
Knoxville, TN  37901-0259           P.O. Box 1708.
                                    Knoxville, TN  37901-1708                         

Judge: THAYER

First Paragraph:

The appeal has resulted from the action of the trial court in
dismissing the employee's claim for benefits.  The Circuit Judge found
plaintiff had failed to establish her injury was caused by an accident
which arose out of and in the course of her employment. The sole issue
on appeal is whether the evidence preponderates against the conclusion
of the trial court. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/JOHNSON_OPN.WP6
Opinion-Flash

AGATHA LAWRENCE
vs.
FINDLAY INDUSTRIES, a division of
GARDNER MANUFACTURING   
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellant:                  For the Appellee:

Patrick A. Ruth                     Robert S. Peters
Julia J. Tate                       100 First Avenue, S.W.
150 Second Avenue N, Suite 201      Winchester, Tennessee 37398
Nashville, Tennessee 37201
    
Judge: INMAN

First Paragraph:

The plaintiff alleged that she suffered a series of injuries in April,
June and August 1992 which aggravated an undescribed condition, and as
of January 13, 1993 suffers from bilateral hand pain and numbness with
cervical radiculopathy and carpal tunnel syndrome with specific thumb
involvement. MODIFIED and REMANDED.

URL:http://www.tba.org/tba_files/TSC_WCP/LAWRENCE_OPN.WP6
Opinion-Flash

WILDA GAIL McCARTY
vs.
FAST FOOD MERCHANDISERS, INC.

and

SUE ANN HEAD, DIRECTOR, 
DIVISION OF WORKERS'    
COMPENSATION, TENNESSEE 
DEPARTMENT OF LABOR

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellant:                  For the Plaintiff-Appellee:     

Charles W. Burson                   John T. March
Attorney General & Reporter         100 South Fifth Street
                                    P.O. Box 231    
Dianne Stamey Dycus                 LaFollette, TN  37766
1510 Parkway Towers
404 James Robertson Pky.            For the Defendant-Appellee:
Nashville, TN  37243-0499
                                    Walter S. Fitzpatrick, III
                                    46 North Jefferson Avenue
                                    P.O. Box 3347
                                    Cookevillle, TN  38501
Judge: BYERS

First Paragraph:

The plaintiff sustained a work-related injury to her right arm, and
the trial court found she suffered a 33% vocational disability to the
right arm as a result of the injury or 16.5% to the body as a whole. 
See Thompson v. Leon Russell Enterprises, 834 S.W.2d 927 (Tenn. 1992).
AFFIRMED AS MODIFIED AND REMANDED.

URL:http://www.tba.org/tba_files/TSC_WCP/MCCARTY_OPN.WP6
Opinion-Flash

MARY W. SCOTT
vs.      
KENNY PIPE & SUPPLY, INC.
and ROYAL INSURANCE 
COMPANY OF AMERICA

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellants:                 For the Appellee:

David T. Hooper                     M. Linda Hughes
HOOPER & HOOPER                     Nashville, Tennessee
Brentwood, Tennessee                       

Judge: Brandt

First Paragraph:

The only issue raised in this appeal is whether the evidence supports
the trial court's award of permanent partial disability. We conclude
that it does and affirm the decision.  AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/SCOTTMW_OPN.WP6
Opinion-Flash

TRANSPORTATION INSURANCE
COMPANY and     
THE STARR COMPANY, INC. 
d/b/a ROCK HARBOR MARINA
vs.       
CLAYTON B. REES

Court:TSC - Workers Comp Panel

Attorneys:      

For the Appellant:                  For the Appellees:

Nader Baydoun                       Terry L. Hill
John I. Harris, III                 James H. Tucker, Jr.
BAYDOUN, HARRIS & REESE             MANIER, HEROD, HOLLABAUGH
Nashville, Tennessee                    & SMITH
                                    Nashville, Tennessee
                    
Judge: Brandt

First Paragraph:

This case presents the question of whether an employee's possession or
business use of a portable telephone converts an otherwise
noncompensable injury into a compensable one.  We conclude that it
does not and affirm the trial court's denial of benefits. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/TRANSPOR_OPN.WP6
Opinion-Flash

CHARLOTTE BAUGUS
vs.
DOYLE BAUGUS

Court:TCA

Attorneys:

THEODORE KERN, KNOXVILLE LEGAL AID SOCIETY, Knoxville, for
Appellee-Petitioner.

ROLAND E. COWDEN, Knoxville, for Appellant-Respondent.

Judge: Franks

First Paragraph:

In this action appellee was granted an ex parte order of protection
pursuant to T.C.A. S36-3-601, et seq., but the order expired prior to
the mandated date of hearing.  Subsequently, the Trial Judge, upon an
evidentiary hearing, issued an order of protection against appellant. 
AFFIRMED AND REMANDED.

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

SHARON O. GARDNER
vs.
INSURA PROPERTY & CASUALTY  
INSURANCE COMPANY, THE CITY OF
CHATTANOOGA, A Municipality,    
and d/b/a THE CHATTANOOGA   
POLICE DEPARTMENT, and OFFICER
KEVIN SMITH, BADGE #737, and    
ERNEST PATILLO

Court:TCA

Attorneys:     

RICHARD A. SCHULMAN and SCOTT A. MILLER, SPEARS, MOORE, REBMAN &
WILLIAMS, Chattanooga, for Plaintiff-Appellant.

RANDALL L. NELSON, City Attorney by PHILLIP A. NOBLETT, Special
Counsel, City Attorney's Office, Chattanooga, for Defendants
Appellees, The City of Chattanooga and Officer Kevin Smith.
                     
Judge: Franks

First Paragraph:

In this action for damages for personal injuries suffered in a motor
vehicle accident, the Trial Court granted summary judgment to the City
of Chattanooga, Chattanooga Police Department and Officer Kevin Smith.
 Plaintiff has appealed. AFFIRMED AND REMANDED.

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

TERRY NORRIS and wife,  
MELISA NORRIS
vs.
JON P. SEABORG, DON W. POOLE,
PHILLIP C. LAWRENCE, HERBERT    
A. THORNBURY, W. LLOYD  
STANLEY, JR., and JOHN R. 
MORGAN, individually and as
partners doing business under
the name and style of POOLE,    
LAWRENCE & THORNBURY; POOLE,    
LAWRENCE, THORNBURY & STANLEY;
and POOLE, LAWRENCE,    
THORNBURY, STANLEY & MORGAN

Court:TCA

Attorneys:     

TAYLOR W. JONES, and LINDA R. GREER, JONES COPELAND LEFKOWITZ & GREER,
Atlanta, and EDWIN Z. KELLY, JR., KELLY, KELLY & GOUGER, P.C., Jasper,
for Plaintiffs-Appellants.

E. BLAKE MOORE and JOHN B. BENNETT, SPEARS, MOORE, REBMAN & WILLIAMS,
Chattanooga, for Defendants-Appellees.

Judge: Franks

First Paragraph:

In this legal malpractice action, the Trial Court granted defendants
summary judgment and plaintiffs have appealed. AFFIRMED AND REMANDED.

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

EVELYN OGLE, DeWITT R.  
SHELTON
vs.
REALTY WORLD-BARNES REAL    
ESTATE COMPANY and DOTTIE 
WOOD

Court:TCA

Attorneys: 

DOUGLAS S. YATES, BRABSON, YATES AND HAMILTON, P.L.C., Sevierville,
for Plaintiffs-Appellees.

JEFF D. RADER, OGLE, WYNN & RADER, Sevierville, for Defendant
Appellant, Realty World-Barnes.

STEVEN E. MARSHALL, Sevierville, for Defendant-Appellant, Dottie Wood.

Judge: Franks

First Paragraph:

In this action the dispute is between plaintiff owners of property and
the defendant real estate agents who held earnest money in escrow for
the sale of plaintiffs' property, which the buyer, Wayne Connelly, did
not purchase as agreed. AFFIRMED IN PART, MODIFIED IN PART, AND
REMANDED.

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

STATE OF TENNESSEE
vs.
JIMMIE L. ALLEN,
a/k/a JIMMIE L. ALEXANDER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL J. GATLIN                   CHARLES W. BURSON
P. O. Box 27331                     Attorney General and Reporter
Memphis, TN  38167-0331
                                    CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243
                    
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    REGINALD R. HENDERSON
                                    Assistant District Attorney
                                    201 Poplar Avenue
                                    3rd Floor
                                    Memphis, TN  38103                        

Judge: SMITH

First Paragraph:

Appellant Jimmie L. Allen appeals the trial court's denial of his
petition for a placement in a community correction program.  After a
careful review of the record we find no reversible error and affirm
the judgment of the trial court.  Appellant was originally indicted
for 14 counts of cocaine possession and sales allegedly occurring in
August and September of 1994.  Pursuant to a negotiated plea agreement
Appellant pled guilty to a charge of solicitation to commit a felony
and four charges of felony possession of more than .5 grams of
cocaine.  As part of the plea agreement Appellant accepted an
effective sentence of nine years in the Department of Correction as a
Range I standard offender.  The issue of suspension of the sentence
was submitted to the trial court.  Appellant was denied a suspended
sentence and requested in the alternative that he be placed on
community corrections pursuant to Tenn. Code Ann. Sec. 40-36-101, et
seq.  The trial judge declined to place Appellant on community
corrections and ordered him to serve his sentence in the penitentiary.
AFFIRMED.

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

STEVE L. BRYANT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLANT:              FOR THE APPELLEE:

PARRISH B. STANTON              CHARLES W. BURSON
209 Tenth Avenue South          Attorney General and Reporter
Nashville, TN 37203
                                LISA A. NAYLOR
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243

                                VICTOR S. JOHNSON
                                District Attorney General

                                KATRIN N. MILLER
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 Second Avenue North
                                Nashville, TN 37209-1649                       


Judge: WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant filed a petition seeking habeas
corpus relief on the grounds that Tennessee's sentencing laws violate
the separation of powers clause of the Tennessee Constitution and that
the sentences authorized are indeterminate in nature and thus contrary
to law.  The trial court denied habeas corpus relief.  We affirm the
judgment of the trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
NATHAN ALLEN CALLAHAN

Court:TCCA

Attorneys:   

FOR THE APPELLANT:                  FOR THE APPELLEE:

STEPHEN M. WALLACE                  CHARLES W. BURSON
District Public Defender            Attorney General and Reporter

                                    DARIAN B. TAYLOR
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    H. GREELEY WELLS
                                    District Attorney General

                                    NANCY S. HARR
                                    Asst District Attorney General
                                    Blountville, TN 37617                       

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure.  The Defendant, Nathan Allen Callahan, was
convicted by a Sullivan County jury of  one count of first-degree
murder and one count of second-degree murder, respectively, for the
shooting deaths of his mother and younger sister.  The jury set
punishment for the first-degree murder conviction at life imprisonment
and fined the Defendant $47,000.00 for the count of second-degree
murder.  The trial court ordered twenty-two years imprisonment on the
conviction for second-degree murder to be served concurrently with the
life sentence.  The Defendant appeals his convictions and raises the
following issues: (1) That the evidence is insufficient to support the
conviction for murder in the first degree; (2) that the trial court
erred in denying the Defendant's special jury request; (3) that the
trial court erred in failing to suppress his confession; and (4) that
the trial court erred by not suspending the fine imposed by the jury. 
After careful review of the issues and the record, we affirm the
judgment of the trial court. AFFIRMED.

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

JACKIE LEE CHILDS
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT J. MENDES                    CHARLES W. BURSON
209 10th Ave. South                 Attorney General and Reporter
Nashville, TN 37203
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    KATRIN N. MILLER
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37209-1649                        

Judge: WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant filed a petition seeking habeas
corpus relief on the grounds that Tennessee's sentencing laws violate
the separation of powers clause of the Tennessee Constitution and that
the sentences authorized are indeterminate in nature and thus contrary
to law.  The trial court denied habeas corpus relief.  We affirm the
judgment of the trial court. AFFIRMED.

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

KENNY D. COVINGTON
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:    

FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT J. MENDES                    CHARLES W. BURSON
209 Tenth Avenue South              Attorney General and Reporter
Suite 511
Nashville, TN 37203                 CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    CHERYL BLACKBURN
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201-1649                      

Judge: WELLES

First Paragraph:

The Petitioner appeals the trial court's denial of his petition for
post conviction relief pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  He was convicted by a guilty plea of three
counts of selling over .5 grams of cocaine, one count of selling over
26 grams of cocaine, one count of possession for sale of over 26 grams
of cocaine, one count of possession for sale of over .5 grams of
cocaine, one count of possession of drug paraphernalia, and one count
of a felon possessing a weapon.  He was sentenced by the trial court
as a Range I offender to thirty (30) years imprisonment.  In this
appeal, the Petitioner contends that counsel rendered ineffective
assistance and that his guilty plea was not entered voluntarily,
knowingly, or understandingly.  We affirm the judgment of the trial
court.  AFFIRMED.

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

LARRY RAY FULLER
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:   

FOR THE APPELLEE:                   FOR THE APPELLANT:

LARRY RAY FULLER, PRO SE            CHARLES BURSON
L.C.R.C.F.                          Attorney General & Reporter
Route 1, Box 330
Tiptonville, TN  38079              CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493

                                    JOHN W. PIEROTTI 
                                    District Attorney General
                        
                                    C. ALANDA HORNE 
                                    Asst District Attorney General
                                    Third Floor 
                                    Criminal Justice Complex
                                    201 Poplar
                                    Memphis, TN  38103                        

Judge: WOODALL

First Paragraph:

The Appellant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his pro
se "Motion for Amended Judgment Order Granting Pre-trial Jail Credit
and Correcting Sentence Effective Date for Concurrent Sentence."  The
Appellant's sole issue is that the trial court erred in denying his
motion for pre trial jail credit.  We affirm the judgment of the trial
court. AFFIRMED.

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

TONY LYNN HICKS
vs. 
FRED J. RANEY, WARDEN

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  This case represents an appeal from the trial
court's denial of the petitioner's petition for writ of habeas corpus.
 The record was filed on February 12, 1997, and the petitioner filed
his brief on March 7, 1997.  The state filed the present motion on
April 16, 1997, accompanied by a motion to accept the late filed
motion.  Having reviewed the motion, the Court hereby finds good cause
to allow the state to late-file its motion to affirm the judgment of
the trial court under Rule 20.

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

CARL ED LEMING
vs.
STATE OF TENNESSEE,  
JAMES A. BOWLEN, Warden

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

Carl Ed Leming, Pro Se              John Knox Walkup
STSRCF Rt. 4, Box 600               Attorney General of Tennessee
Pikeville, TN 37367                     and             
                                    Elizabeth T. Ryan
                                    Asst Attorney General of Tennessee                  
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    James Michael Taylor
                                    District Attorney General
                                        and
                                    James W. Pope, III
                                    Asst District Attorney General
                                    265 Third Avenue, Suite 300
                                    Dayton, TN 37321                       

Judge: Tipton

First Paragraph:

The petitioner, Carl Ed Leming, appeals as of right from the dismissal
of his petition for habeas corpus relief by the Bledsoe County Circuit
Court for failure to state grounds justifying the issuance of a writ
of habeas corpus.  The petitioner is in the custody of the Department
of Correction serving an effective sentence of forty-three years for
his 1983 convictions of two counts of aggravated rape and one count of
grand larceny.  The convictions were based upon the petitioner
entering guilty pleas.  The petitioner was sentenced on December 13,
1983, as a Range I, standard offender to concurrent sentences of forty
years for each aggravated rape conviction to be served consecutively
to a three-year sentence for the grand larceny conviction.  On appeal,
the petitioner essentially contends that the trial court erred by
dismissing his petition for habeas corpus relief without appointing
counsel or conducting an evidentiary hearing because he has served the
minimum term required for release eligibility. AFFIRMED.

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

MARVIN ANTHONY MATHEWS
vs.
STATE OF TENNESSEE,     
FRED RANEY, WARDEN

Court:TCCA

Attorneys:  

For the Appellant:                  For the Appellee:

MARVIN ANTHONY MATHEWS              JOHN KNOX WALKUP
Pro Se                              Attorney General and Reporter
Cold Creek Correctional Facility        
P. O. Box 1000  
Henning, TN  38041-1000             EUGENE J. HONEA
                                    Assistant Attorney General  
                                    LISA A. NAYLOR
                                    Legal Assistant
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    AT TRIAL:
                                                                    
                                    CHARLOTTE H. RAPPUHN
                                    Assistant Attorney General
                                    LISA A. NAYLOR
                                    Legal Assistant
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN  37243-0493                        

Judge: Hayes

First Paragraph:

The appellant, Marvin Anthony Mathews, appeals the summary dismissal
by the Lauderdale County Circuit Court of his pro se petition for a
writ of habeas corpus.  The appellant is currently incarcerated at the
Cold Creek Correctional Facility in Lauderdale County.  In his pro se
petition, the appellant states that, in 1984, he was convicted of
third degree burglary in the Criminal Court of Shelby County.  The
appellant alleges that, following his conviction, he was sentenced as
a "persistent offender and an especially aggravated offender" to ten
years imprisonment in the Tennessee Department of Correction "at fifty
(50) percent."  He further alleges that his status as a "persistent
offender and an especially aggravated offender" was based upon eight
prior convictions that have been "set aside" by this court.  Thus, the
appellant contends that he is serving an "excessive sentence."
AFFIRMED.

URL:http://www.tba.org/tba_files/TCCA/MATHEWS3_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
BOBBY KENNETH NASH, JR.

Court:TCCA

Attorneys:

For the Appellant:                  For the Appellee:

Sam E. Wallace, Jr.                 John Knox Walkup
227 Second Avenue, N.               Attorney General of Tennessee
Nashville, TN 37201                     and
                                    Darian B. Taylor
                                    Asst Attorney General of Tennessee                  
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Victor S. Johnson, III
                                    District Attorney General
                                        and
                                    Kimberly Hattaway
                                    Washington Square
                                    222 2nd Avenue North
                                    Nashville, TN 37201-1649                          

Judge: Tipton

First Paragraph:

The defendant, Bobby Kenneth Nash, Jr., appeals from his jury
conviction in the Davidson County Criminal Court for first degree
murder.  He received a sentence of life in prison.  In this appeal as
of right, he contends that the evidence is insufficient to support his
first degree murder conviction. AFFIRMED.

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

STATE OF TENNESSEE
vs.
WILLIAM L. POSEY
a.k.a LEM POSEY

Court:TCCA

Attorneys:   

For the Appellant:                  For the Appellee:

F. Michie Gibson, Jr.               John Knox Walkup
1416 Parkway Towers                 Attorney General of Tennessee
404 James Robertson Parkway             and             
Nashville, TN 37219                 Anthony D. Miller
                                    Asst Attorney General of Tennessee                  
                                    450 James Robertson Parkway     
                                    Nashville, TN 37243-0493

                                    Victor S. Johnson, III
                                    District Attorney General
                                        and 
                                    Nicholas Bailey
                                    Pam Anderson
                                    Asst District Attorneys General
                                    Washington Square
                                    222 2nd Avenue North
                                    Nashville, TN 37201-1649
                       

Judge: Tipton

First Paragraph:

The defendant, William L. Posey a.k.a. Lem Posey, was convicted in a
jury trial in Davidson County Criminal Court of seven counts of
aggravated robbery, a Class B felony.  As a Range II, multiple
offender, he received an effective sentence of sixty-four years in the
Department of Correction consecutive to a previous life sentence
imposed in Georgia.  In this appeal as of right, his only issue is
whether the trial court abused its discretion by refusing to sever the
various charges for separate trials.  We hold that the trial court's
refusal was proper. AFFIRMED.

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

STATE OF 
vs.
JEFFERY L. RIGNEY and   
HERMAN EUGENE HALE

Court:TCCA

Attorneys:    

FOR APPELLANT RIGNEY:               FOR THE APPELLEE:

JEFFREY K. SECKLER                  CHARLES W. BURSON
Seckler, Bramlett & Durard          Attorney General and Reporter
724 North Main Street
P.O. Box 967                        MERRILYN FEIRMAN (brief)
Shelbyville, TN 37160               Assistant Attorney General
                                    500 Charlotte Avenue
                                    Nashville, TN 37243
FOR APPELLANT HALE:
                                    LISA NAYLOR (oral argument)
ROBERT S. PETERS                    Assistant Attorney General
Swafford, Peters & Priest           450 James Robertson Parkway
100 First Avenue, S.W.              Nashville, TN 37243-0493
Winchester, TN 37398
                                    C. MICHAEL LAYNE
                                    District Attorney General

                                    KENNETH SHELTON
                                    Asst District Attorney General
                                    307 S. Woodland
                                    P.O. Box 147
                                    Manchester, TN 37355                      

Judge: RILEY

First Paragraph:

The appellants, Jeffery L. Rigney and Herman Eugene Hale, appeal the
sentences imposed by the Circuit Court of Coffee County following
their guilty plea to theft of property over $1,000.  Both defendants
were sentenced to four years, provided that upon the expiration of
Rigney's service of nine (9) months and Hale's service of twelve (12)
months in the county jail, they could serve the remainder of their
sentences in the community corrections program. Both appeal the manner
in which they are to serve their sentences, claiming that they should
not be confined for any period of time.  Appellant Rigney also asserts
that a sentence of four (4) years is excessive and inappropriate under
the 1989 Criminal Sentencing Reform Act.  We disagree and affirm the
judgment of the trial court. AFFIRMED.

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

STATE OF TENNESSEE
vs.
ALBERT SEALS, JR.

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

HAROLD D. BALCOM, JR.               CHARLES W. BURSON
350 E., Race St., Suite 1           Attorney General and Reporter
P. O. Box 487
Kingston, TN  37763                 HUNT S. BROWN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN  37243

                                    CHARLES HAWK
                                    District Attorney General

                                    D. ROGER DELP
                                    Assistant District Attorney
                                    Ninth Judicial District
                                    P. O. Box 703
                                    Kingston,  TN  37763                     

Judge: SMITH

First Paragraph:

Appellant Albert Seals Jr. pled guilty in the Roane County Criminal
Court to driving under the influence of an intoxicant.  He received a
sentence of eleven months and twenty-nine days.  The trial court
ordered that he serve four days in the county jail with the balance of
the sentence served on probation.  Pursuant to Rule 37(b)(2)(i) of the
Tennessee Rules of Criminal Procedure, Appellant reserved the
following certified question of law: whether the investigatory stop of
his vehicle was based upon a reasonable suspicion supported by
specific and articulable facts. AFFIRMED.

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

STATE OF TENNESSEE
vs.
CECIL SKIDMORE

Court:TCCA

Attorneys:                  

For the Appellant:                  For the Appellee:

Mack Garner                         John Knox Walkup
District Public Defender            Attorney General and Reporter
318 Court Street    
Maryville, TN  37804                Eugene J. Honea
                                    Assistant Attorney General                          
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493                
                        
                                    Mike Flynn
                                    District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804-5906        

Judge: Hayes

First Paragraph:

The appellant, Cecil D. Skidmore, was convicted by a Blount County
jury of attempted first degree murder, a class A felony.  The trial
court sentenced the appellant as a standard, range I offender to
twenty-three years imprisonment in the Tennessee Department of
Correction.  In this appeal, the appellant challenges the trial
court's refusal to instruct the jury concerning the offense of
attempted voluntary manslaughter, the sufficiency of the evidence
supporting the jury's verdict, and the trial court's imposition of a
sentence of twenty-three years. AFFIRMED.

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

RICKEY G. SMITH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:      

For the Appellant:                  For the Appellee:

David C. Stebbins                   John Knox Walkup
330 South High Street               Attorney General and Reporter
Columbus, OH 43215                          
                                    Merrilyn Feirman
John G. Oliva                       Assistant Attorney General
222 Second Avenue North, 417        450 James Robertson Parkway
Nashville, TN 37201                 Nashville, TN 37243-0493

                                    John W. Pierrotti
                                    District Attorney General

                                    James M. Lammey, Jr.
                                    Jennifer S. Nichols
                                    Assistant District Attorneys
                                    201 Poplar - Third Floor
                                    Criminal Justice Complex
                                    Memphis, TN 38103                    

Judge: Barker

First Paragraph:

The appellant, Rickey G. Smith, appeals as of right the denial in the
Shelby County Criminal Court of his fourth petition for
post-conviction relief.  Finding no error in the trial court's order,
we affirm the denial of relief. AFFIRMED.

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

ROOSEVELT JOHN SMITH
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:     

FOR THE APPELLANT:                  FOR THE APPELLEE:

SHAWN A. TIDWELL                    CHARLES W. BURSON
209 Tenth Avenue, South             Attorney General and Reporter
Suite 511
Nashville, TN 37203                 LISA A. NAYLOR
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    SHARON L. BROX
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201                      

Judge: WELLES

First Paragraph:

The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial court's denial of his
petition for post conviction relief.  On September 8, 1994, the
Petitioner pleaded guilty to six counts of aggravated burglary and one
count of possession of cocaine with intent to sell or deliver.  As
specified in the plea agreement, the trial court sentenced him to
fifteen years imprisonment for each aggravated burglary conviction,
all running concurrently, and to twenty years for the drug conviction.
 The drug sentence was ordered to run consecutively to the burglary
sentences, resulting in an effective sentence of thirty-five years in
the Department of Correction.  The Petitioner was classified as a
Range III Persistent Offender.  He filed a pro se petition for
post-conviction relief on July 11, 1995, which was amended with the
assistance of counsel on October 20, 1995.  In his petition for
post-conviction relief, the Petitioner argued that he was denied
effective assistance of counsel at his guilty plea proceeding.  After
conducting an evidentiary hearing, the trial court found that the
Petitioner had received effective assistance of counsel and denied the
petition.  We affirm the judgment of the trial court. AFFIRMED.

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

GARY STEPHEN STOTTS
vs.
STATE OF TENNESSEE

Court:TCCA

First Paragraph:

It appears that the final judgment in the petitioner's case was
entered on May 4, 1995.  Subsequently, on September 24, 1996, the
petitioner filed his petition for post-conviction relief.  Upon the
state's motion, the trial court dismissed the petition without a
hearing upon a finding that the petition was barred by the one-year
statute of limitation. We agree.

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

WILLIAM LEE TOLLETT
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:                  FOR THE APPELLEE:

DEANNA C. BELL                      CHARLES W. BURSON
211 Third Avenue, North             Attorney General and Reporter
Nashville, TN 37201
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    ON SEABORG
                                    Asst District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37209-1649                        

Judge: WELLES

First Paragraph:

This is an appeal pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure.  The Defendant filed a petition seeking habeas
corpus relief on the grounds that Tennessee's sentencing laws violate
the separation of powers clause of the Tennessee Constitution and that
the sentences authorized are indeterminate in nature and thus contrary
to law.  The trial court denied habeas corpus relief.  We affirm the
judgment of the trial court. AFFIRMED.

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

JOSEPH VERES
vs.
STATE OF TENNESSEE

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:

DOUGLAS A. TRANT                CHARLES W. BURSON
900 S. Gay Street               Attorney General and Reporter
Suite 1502
Knoxville, TN  37902            EUGENE J. HONEA
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN  37243

                                BILL GIBSON
                                District Attorney General

                                BEN FANN
                                Assistant District Attorney
                                145 S. Jefferson Avenue
                                Cookeville, TN  38501                        

Judge: WELLES

First Paragraph:

Appellant Joseph Veres appeals from the dismissal of his petition for
post-conviction relief.  On August 24, 1995, Appellant filed a
petition for post conviction relief, alleging ineffective assistance
of counsel and several other constitutional violations.  The
post-conviction court dismissed his petition as time-barred.  The
issue before this Court is whether Appellant's petition is barred by
the statute of limitations found in Tennessee Code Annotated Section
40-30-102 (1990) (Repealed).  For the reasons stated below, we affirm
the decision of the post-conviction court. AFFIRMED.

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

RICKY GENE WILLIAMS
vs.
FRED RANEY, WARDEN

Court:TCCA

First Paragraph:

This matter is before the Court upon the state's motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of
Criminal Appeals.  The case before this Court represents an appeal
from the trial court's denial of the petitioner's petition for writ of
habeas corpus.  The record was filed on January 14, 1997, and the
petitioner filed his brief on February 27, 1997.  The petitioner was
originally indicted on four counts aggravated rape in August 1983, and
was subsequently found guilty of the same.  In the present appeal, the
petitioner, relying in part upon State v. Roger Dale Hill, No.
01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the
judgment entered against him is void because the indictment failed to
allege the mens rea of the offense charged.

URL:http://www.tba.org/tba_files/TCCA/WILLIA-R_ORD.WP6

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