Opinion FlashAugust 22, 2002
Volume 8 Number 147
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.This Issue (IN THIS ORDER):
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Howard H. Vogel
STATE OF TENNESSEE v. CHRISTOPHER LYNN BRABSON Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee, and William C. Donaldson, Athens, Tennessee, for the appellant, Christopher Lynn Brabson. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Shari Tayloe, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Christopher Lynn Brabson, was convicted by a jury in the McMinn County Criminal Court of one count of the sale of .5 grams or more of cocaine, a Class B felony. The jury also assessed a fine of $80,000. Following a sentencing hearing, the trial court imposed a sentence of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant alleges: (1) the evidence is insufficient to support a verdict of guilt beyond a reasonable doubt, (2) the trial court erred in sentencing, and (3) the jury imposed an excessive fine. We affirm the judgment of the trial court but reduce the fine to $25,000. http://www.tba.org/tba_files/TCCA/brabsoncl.wpd
ROGER HARRIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger Harris. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Petitioner appeals the trial court's denial of post-conviction relief. On appeal, petitioner alleges (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) he was unconstitutionally denied bail, and (4) the indictment against him for first degree murder was unconstitutionally amended. We grant petitioner a delayed appeal, and we stay further proceedings on his remaining post-conviction claims. http://www.tba.org/tba_files/TCCA/harrisr1.wpd
STATE OF TENNESSEE v. ROBERT ANDREW LEWIS Court:TCCA Attorneys: Joe M. Felknor, Knoxville, Tennessee, for the appellant, Robert Andrew Lewis. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Robert Andrew Lewis, pled guilty to two counts of driving under the influence of an intoxicant, first offense, in the General Sessions Court of Knox County. The trial court imposed concurrent sentences of confinement for 11 months and 29 days, with all but 10 days of the sentences suspended. In addition, the trial court suspended Defendant's driving privileges for one year, and ordered him to pay a fine of $350.00 and attend DUI school. Within one year, a violation of probation warrant was issued, alleging that Defendant was driving on a revoked license, arrested for DUI, and had failed to complete DUI school. The General Sessions Court of Knox County revoked Defendant's probation and reinstated his sentences for both offenses. Defendant appealed to the Criminal Court of Knox County. On the date that his case was to be heard, Defendant's trial counsel did not appear in court. As a result, the criminal court dismissed the appeal for failure to prosecute and affirmed the judgment of the Knox County General Sessions Court revoking Defendant's probation. After a review of the record and applicable law, we reverse the judgment of the criminal court and remand this case for a de novo hearing on the probation revocation warrant. http://www.tba.org/tba_files/TCCA/lewisr.wpd
STATE OF TENNESSEE v. BRENT TOD PERKINS Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Charles Atchley, Jr., Assistant District Attorney General, for the cross-appellee, State of Tennessee. Bryan Delius, Sevierville, Tennessee, for the cross-appellant, Brent Tod Perkins. Judge: WADE First Paragraph: The defendant, Brent Tod Perkins, was charged with driving under the influence. The trial court determined that the officer had reasonable suspicion to stop the defendant's vehicle, but granted a defense motion to suppress the results of a breathalyser test, concluding that the officer failed to comply with the requirements of State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). Both the state and the defendant were granted an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The investigatory stop was conducted with constitutional safeguards. Because the state failed to establish adherence to the Sensing requirements by a preponderance of the evidence, the order suppressing the results of the breathalyser exam is affirmed. http://www.tba.org/tba_files/TCCA/perkinsbrentt.wpd
STATE OF TENNESSEE v. IVAN RAY SHIRK Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; Paula R. Voss and John Halstead, Assistant Public Defenders, for the appellant, Ivan Ray Shirk. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Ivan Ray Shirk, appeals from the Knox County Criminal Court's denial of his motion to declare void the judgment proclaiming him to be a habitual offender pursuant to the Motor Vehicle Habitual Offenders (MVHO) Act. He contends that the MVHO judgment is void because the trial court improperly entered it nunc pro tunc before entry of the judgments on two of the three qualifying offenses. We affirm the trial court's denial of the defendant's motion to void the MVHO judgment. http://www.tba.org/tba_files/TCCA/shirkIr.wpd
STATE OF TENNESSEE v. THOMAS H. WHALEY Court:TCCA Attorneys: Dennis C. Campbell, Sevierville, Tennessee, for the appellant, Thomas H. Whaley. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Charles E. Atchley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The Sevier County Grand Jury returned a two count presentment alleging the defendant committed a vehicular homicide by intoxication for the death of one victim and a vehicular assault by intoxication for the serious bodily injury of another victim. The defendant pled guilty to the amended charges of vehicular homicide by recklessness and aggravated assault by recklessness for agreed concurrent sentences of six years and three years, respectively, with the issue of alternative sentencing to be determined by the trial court. The trial court sentenced the defendant to split confinement and ordered the defendant to serve nine months "day-for-day" in the county jail with the remainder of his six-year effective sentence on supervised probation. In this appeal, the defendant alleges he should have received community corrections, or alternatively, he received excessive confinement. We conclude the trial court improperly ordered the defendant to serve his nine months of confinement "day-for-day," thereby depriving him of the opportunity to earn good conduct credits. We remand for deletion of the day-for-day requirement; however, we affirm the trial court in all other respects. http://www.tba.org/tba_files/TCCA/whaleyth.wpd
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