May 1, 2003
Volume 9 Number 079
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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
STATE OF TENNESSEE v. HAROLD L. GREEN
James M. Webster, Oak Ridge, Tennessee, for the appellant, Harold L.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Elizabeth B. Marney, Assistant Attorney
General, for the appellee, State of Tennessee.
We granted Harold L. Green's application pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure to determine the duration of
the trial court's authority to entertain a motion to withdraw a guilty
plea. On October 8, 1999, Green pleaded guilty to driving while under
the influence of an intoxicant and was, thereafter, sentenced by the
Criminal Court of Anderson County. On November 5, 1999, Green filed a
motion to withdraw the previously entered guilty plea; the trial court
granted the motion. The State appealed pursuant to Rule 10 of the
Tennessee Rules of Appellate Procedure. After granting the State's
request for appeal, the Court of Criminal Appeals held that the trial
court was without jurisdiction to consider the motion to withdraw the
guilty plea. We find that the trial court's jurisdiction to hear and
decide the motion to withdraw the guilty plea continued for thirty
days after the plea was entered. Accordingly, we reinstate the
judgment of the trial court and remand the cause for any further
proceedings that may be appropriate.
LARRY WHITE v. FEDERATED MUTUAL INSURANCE COMPANY
Court:TSC - Workers Comp Panel
Gordon C. Aulgur and David Brett Burrow, Nashville, Tennessee,
attorneys for the appellant, Federated Mutual Insurance Company.
Tracy White Moore, Columbia Tennessee, attorney for the appellee,
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court found the plaintiff had suffered a 16 percent loss of his left
arm and 28 percent loss to his right arm and entered judgment
accordingly. The trial court further ordered the defendant to hold
the plaintiff harmless for any subrogation claims against him for
recovery of medical bills paid by an insurance company under a policy
for health care owned by the plaintiff. The defendant says the
evidence does not support a finding the plaintiff was injured in the
course and scope of his employment with the defendant; the court erred
in not finding the last injurious rule should apply; there is no
showing the plaintiff suffered any vocational disability to his arms,
and that the trial court erred by finding the defendant should hold
the plaintiff harmless for any subrogation claims of a health
insurance policy for payment made on behalf of the plaintiff for
treatment of the carpal tunnel syndrome. We affirm the judgment of
the trial court.
KEITH AND WENDY DOWNEN, Individually and as Parents and Next of Kin of
ADAM TROY DOWNEN, v. MICHAEL ANGELO TESTA and CAROL ANNE TESTA
Robert E. Pryor, and Perry H. Windle, III, Knoxville, Tennessee, for
Edward U. Babb, Knoxville, Tennessee, for Appellees.
Trial Court granted social hosts summary judgment on grounds that
"consumption" of alcohol and not the furnishing was proximate cause of
death, pursuant to Tenn. Code Ann. S 57-10-101. We affirm on that
ground, but vacate in part as to voluntary assumption of duty.
ALVIN FREEMAN v. TENNESSEE DEPARTMENT OF PROBATION AND PAROLE
Alvin Freeman, Whiteville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Shay B.
Winebarger, Assistant Attorney General, for the appellee, Tennessee
Board of Probation and Parole.
This appeal involves a dispute between a prisoner and the Tennessee
Board of Probation and Parole. After the Board declined to parole
him, the prisoner filed a pro se petition for common-law writ of
certiorari in the Chancery Court for Davidson County seeking judicial
review of the Board's action. The trial court, acting pursuant to
Tenn. Code Ann. S 41-21-807 (Supp. 2002), ordered the prisoner to make
a partial payment of the filing fee within thirty days and dismissed
the petition for failure to prosecute when the prisoner failed to do
so. The prisoner has appealed. We have determined that the trial
court properly dismissed the prisoner's petition.
WILLARD EUGENE MALONE v. JUDY MAE BISHOP MALONE
Michael May, Kingsport, for the Appellant, Willard Eugene Malone
John P. Chiles, Kingsport, and Thomas F. Bloom, Nashville, for the
Appellee, Judy Mae Bishop Malone
In this post-divorce case, Willard Eugene Malone (Husband) filed a
motion requesting the Trial Court to decrease or discontinue his
alimony payments to Judy Mae Bishop Malone (Wife). The sole basis for
the motion was Husband's allegation that Wife "is cohabiting with a
third person . . .and is no longer in need of the alimony paid by
[Husband]." Wife denied that a reduction or elimination of alimony
was appropriate, alleging that the person who had lived with her did
not provide her financial support or contribution, and that he no
longer lived in her trailer at the time of her answer. Wife also
alleged that she remained in need of the alimony payments. The Trial
Court found no substantial material change in circumstances and
ordered Husband to continue paying alimony in the amount of $1000 per
month. Husband appeals. We affirm the judgment of the Trial Court.
JEFF UTLEY v. TENNESSEE DEPARTMENT OF CORRECTION, et al.
Jeff Utley, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; and Abigail Turner,
Assistant Attorney General, for the appellees, Tennessee Department of
Correction and Donal Campbell.
This appeal involves a dispute between a prisoner and the Department
of Correction regarding his punishment for two unrelated disciplinary
offenses. On both occasions, the Department extended the prisoner's
release eligibility date in accordance with versions of Tenn. Dep't
Corr. Policy Index No. 502.02 issued after he committed the crimes for
which he was incarcerated. The prisoner filed a complaint in the
Chancery Court for Davidson County asserting that the Department's
application of the later version of the policy to him violated the Ex
Post Facto Clause of the United States Constitution. The trial court
granted the Department's Tenn. R. Civ. P. 12.02(6) motion, and the
prisoner has appealed. We have determined that the prisoner's
complaint fails to state a colorable ex post facto claim under either
the federal or state constitution. Accordingly, we affirm the
dismissal of the prisoner's complaint.
STATE OF TENNESSEE v. LARRY D. ANDERSON
Gary F. Antrican, District Public Defender, and Julie K. Pillow,
Assistant Public Defender, for the appellant, Larry D. Anderson.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and James Walter Freeland, Jr., and Tracey A. Brewer,
Assistant District Attorneys General, for the appellee, State of
The defendant was found guilty by a jury of first degree felony murder
and especially aggravated burglary. He was sentenced to life plus
twelve years, respectively, in the Department of Correction. The
defendant contends that he was mentally incompetent to stand trial or
to give a knowing, intelligent, and voluntary waiver of his Miranda
rights and that his sentences were in error. We affirm the judgments
from the trial court.
MANNY T. ANDERSON v. STATE OF TENNESSEE
Barry R. Tidwell, Nashville, Tennessee, for the appellant, Manny T.
Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.
The petitioner pled guilty to two counts of aggravated assault and one
count of aggravated kidnapping on September 10, 1998, and was
sentenced as a Range II, multiple offender to concurrent sentences of
eight years at 35% for each count of aggravated assault and as a Range
I, standard offender to eight years at 30% for the aggravated
kidnapping charge, with the sentence suspended and the petitioner
placed on eight-year probation. As a result of a probation violation,
the trial court, on September 14, 2001, revoked probation and amended
the judgments so that the sentence to be served for aggravated
kidnapping was modified to eight years at 100%. Challenging the
amendment, a pro se petition for post-conviction relief was filed on
January 2, 2002, which was denied as being untimely. On appeal, the
petitioner argues that, because the one-year statute of limitations
began to run at the time of entry of the amended judgment for the
kidnapping conviction, his post-conviction petition was timely. We
agree and reverse the order of the post-conviction court dismissing
the petition as untimely.
CLEOPHIS KING, III v. STATE OF TENNESSEE
Robert B. Gaia, Memphis, Tennessee, for the appellant, Cleophis King,
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Thomas Hoover, Assistant District Attorney General, for
the appellee, State of Tennessee.
The petitioner appeals the denial of his petition for post-conviction
relief, arguing that the post- conviction court erred in finding that
his guilty pleas were knowing and voluntary and that he received the
effective assistance of counsel. Following our review, we affirm the
judgment of the post-conviction court.
STATE OF TENNESSEE v. DANYELLE DEWAIN PARKER
Dwight E. Scott, Nashville, Tennessee, for the appellant, Danyelle
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Angelita Dalton, Assistant District
Attorney General, for the appellee, State of Tennessee.
The petitioner, Danyelle Dewain Parker, appeals the trial court's
denial of post-conviction relief. The single issue presented for
review is whether the petitioner was denied the effective assistance
of counsel at trial. The judgment is affirmed.
WILLIAM K. ROBISON v. STATE OF TENNESSEE
Jeff Preston Burks, Franklin, Tennessee, for the Appellant, William K.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Christine M. Lapps, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Michael J. Fahey, III,
Assistant District Attorney General, for the Appellee, State of
The Appellant, William K. Robison, appeals the denial of his petition
for post-conviction relief by the Hickman County Circuit Court.
Robison is currently serving an effective sentence of fifteen years as
a result of his guilty pleas to aggravated assault, setting fire to
personal property, escape and theft over $10,000. On appeal,
Robinson argues the post-conviction court erred in finding that: (1)
he received effective assistance of counsel and (2) his guilty pleas
were knowingly and voluntarily entered. Finding no error, the
judgment of the post-conviction court is affirmed.
STATE OF TENNESSEE v. DWAYNE A. WILLIAMS
Robert Wilson Jones, District Public Defender; Karen Massey and
Garland Ergueden, Assistant Public Defenders, for the appellant, Dwayne
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Scot A. Bearup, Assistant District Attorney General, for
the appellee, State of Tennessee.
The defendant was convicted by a jury of possession of more than 300
grams of cocaine with the intent to deliver. The trial court
sentenced the defendant as a Range I standard offender to twenty years
incarceration. The defendant contends the evidence is insufficient to
sustain his conviction. We conclude the evidence is sufficient to
sustain the defendant's conviction and affirm the judgment of the
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