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Howard H. Vogel
| STATE OF TENNESSEE v. ROBERT PAGE
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Tracey
Jones, Assistant Attorney General; William L. Gibbons, District Attorney General; and David H.
Findley, Assistant District Attorney General, for the appellant, State of Tennessee.
Paul Guibao and Larry Copeland, Memphis, Tennessee, for the appellee, Robert Page.
We granted the Stateís application for permission to review this case pursuant to Tennessee Rule
of Appellate Procedure 11 in order to determine the constitutionality of Tennessee Code
Annotated section 40-18-110(c), which provides that failure to request a lesser-included offense
instruction in writing waives the right to assign it as an issue in a motion for a new trial or on
appeal. We conclude that section 40-18-110(c) renders the omission of instruction on lesser-
included offenses subject to the general rule that issues concerning instructions are considered
waived in the absence of objection or a written request, unless they contain plain error. Under
section 40-18-110(c), even absent a written request, the trial judge may still charge the jury on
applicable lesser-included offenses and an appellate court may still review a lesser-included
offense issue under the doctrine of plain error. We conclude, however, that the failure to instruct
on lesser-included offenses in the present case does not constitute plain error. Accordingly, we
reverse the judgment of the Court of Criminal Appeals.
CHARLENE SINOR v. TIMOTHY BARR
Mike J. Urquhart, Nashville, Tennessee for the Appellant, Timothy Barr.
Paul G. Summers, Attorney General and Reporter and Warren Jasper, Assistant Attorney General,
Nashville, Tennessee for the Appellee, Charlene Sinor.
Charlene Sinor (Petitioner) filed a petition for contempt seeking, in part, to have Timothy Barr
(Respondent) found in criminal contempt for his failure to pay child support as ordered. After a
trial, the Trial Court held Respondent in criminal contempt finding six violations of the Trial Courtís
orders. Respondent appeals to this Court claiming that his conviction of criminal contempt was
based upon an improper evidentiary presumption and insufficient evidence. We reverse.
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. T.M.B.K.
D. Marty Lasley, Chattanooga, Tennessee, for the Appellant, T.M.B.K.
Paul G. Summers, Attorney General and Reporter, and Douglas Dimond, Senior Counsel, General
Civil Division, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's
In this appeal, T.M.B.K. (Mother) contends that the trial court erred in terminating her parental
rights and that the trial court lacked jurisdiction to adjudicate the initial child custody proceeding.
After careful review of the evidence and applicable authorities, we hold that the trial court had
subject matter jurisdiction and the evidence does not preponderate against the trial courtís finding
by clear and convincing evidence of abandonment and substantial noncompliance with the
permanency plan. We futher hold that the evidence preponderates against the trial courtís finding
by clear and convincing evidence of a failure to remedy persistent conditions. Therefore, we affirm
in part and reverse in part.
BRENDA WOODS, TAWANA POLK, JONATHAN JOY AND CLIFTON POLK
CATHY N. JONES, ADMINISTRATOR OF ELECTIONS, HARDEMAN COUNTY ELECTION COMMISSION;
YVONNE ALLEN, HARDEMAN COUNTY ELECTION COMMISSIONER;
CARL GIBSON, HARDEMAN COUNTY ELECTION COMMISSIONER;
THAREN E. HALEY, HARDEMAN COUNTY ELECTION COMMISSIONER; JAMES E. HICKS, HARDEMAN COUNTY ELECTION COMMISSIONER; AND
JANET WELLONS, HARDEMAN COUNTY ELECTION COMMISSIONER
C. Michael Robbins, Memphis, Tennessee, for the appellants, Brenda Woods, Tawana Polk,
Jonathan Joy, and Clifton Polk.
W. Boyette Denton, Bolivar, Tennessee, for the appellees, Cathy N. Jones, Administrator of
Elections for the Hardeman County Election Commission, and Yvonne Allen, Carl Gibson, Tharen
E. Haley, James E. Hicks, and Janet Wellons, Hardeman County Election Commissioners.
This is an election contest. The plaintiffs were unsuccessful candidates for office in a municipal
election held on May 19, 2005. On June 3, 2005, they filed this election contest. The defendants
filed a motion to dismiss the lawsuit based on the special ten-day statute of limitations for election
contests, which is set out in T.C.A. Section 2-17-105. The trial court granted the motion to dismiss. The
plaintiffs now appeal. We reverse, concluding that, pursuant to Tennessee Rule of Civil Procedure
6.01, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation of the
time in which the plaintiff must file suit.
STATE OF TENNESSEE v. ROBERT FLUELLEN
Irwin Cantor (at trial) and Gerald S. Green (on appeal), Memphis, Tennessee, for the Appellant,
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; Alanda Dwyer, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Following a bench trial, the Defendant, Robert Fluellen, was convicted of one count of burglary
of a building, a Class D felony. The Defendant was sentenced as a multiple offender to six years
in the workhouse. On appeal, the Defendant contends that the evidence presented at his bench
trial is not sufficient to sustain his conviction. Finding no reversible error, we affirm the trial
JOSEPH D. GAINES v. KEVIN MYERS, WARDEN
Joseph D. Gaines, pro se.
Paul G. Summers, Attorney General & Reporter and Rachel E. Willis, Assistant Attorney General,
for the appellee, Kevin Myers, Warden.
The petitioner appeals the summary dismissal of his petition for writ of habeas corpus. In this
appeal, he asserts that the judgments are void because the indictment was defective. The judgment
of the trial court is affirmed.
STATE OF TENNESSEE v. SHANNON A. HOLLADAY
With Concurring Opinion
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the appellant, State of Tennessee.
J. Thomas Marshall, Jr., District Public Defender, for the appellee, Shannon A. Holladay.
An Anderson County grand jury indicted the defendant, Shannon A. Holladay, for one count of
vehicular homicide by intoxication, a Class B felony, and one count of vehicular homicide by
recklessness, a Class C felony. Before trial, the defendant filed a motion to suppress the evidence
obtained from the air bag sensor module in the defendantís car, which the Anderson County Criminal
Court granted. The state appeals, contending that the trial court erred in granting the defendantís
motion to suppress. We dismiss this case for lack of jurisdiction.
LARRY McKAY v. STATE OF TENNESSEE
Larry McKay, Nashville, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; and
Victor S. (Torry) Johnson III, District Attorney General, Dan Hamm, Assistant District Attorney
General, for the appellee, the State of Tennessee.
This matter is before the Court upon the Stateís motion to affirm the judgment of the trial court by
memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner
has appealed the trial courtís order summarily dismissing the petition for the writ of habeas corpus.
In that petition, the petitioner argues that his indictments were void because the applicable statute
under which he was indicted did not define the use of a deadly weapon as an element of first degree
murder. Upon a review of the record in this case we are persuaded that the trial court was correct
in summarily dismissing the habeas corpus petition and that this case meets the criteria for
affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the Stateís
motion is granted and the judgment of the trial court is affirmed.
STATE OF TENNESSEE v. RYAN SANDSON
Robert Wilson Jones, Shelby County Public Defender; Garland Ergüden, Assistant Public
Defender (on appeal); and Harry Sayle, Assistant Public Defender (at trial), for the appellant,
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District
Attorney General, for the appellee, State of Tennessee.
The defendant, Ryan Sandson, was found guilty by a Shelby County jury of aggravated robbery,
a Class B felony, and was sentenced as a standard offender to eleven years, six months in the
Department of Correction. On appeal, he raises two issues: (1) whether the evidence was
sufficient to support his conviction; and (2) whether his sentence was excessive. Following our
review, we affirm the judgment of the trial court
JEREMY D. SHIVERS v. STATE OF TENNESSEE
Dominic Leonardo, Nashville, Tennessee, for the appellant, Jeremy D. Shivers.
Paul G. Summers, Attorney General & Reporter; Jane L. Beebe, Assistant Attorney General; and
Amy Eisenbeck, Assistant District Attorney General, for the appellee, the State of Tennessee.
The petitioner, Jeremy D. Shivers, appeals the denial of his petition for post-conviction relief. In this
appeal, he asserts that his trial counsel was ineffective and that, as a result of counsel's deficient
performance, his guilty pleas were not knowingly and voluntarily entered. The judgment of the post-
conviction court is affirmed.
Inability of the State to Require Notaries Public to be U.S. Citizens
TN Attorney General Opinions
Opinion Number: 06-026
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|Read the Leaf-Chronicle's opinion
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|The Columbia Daily Herald has the story
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|Track legislation of interest to Tennessee attorneys
|The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a position on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
|TBA Bill Tracking Service