Opinions

Elvis Wayne Ivey v. Long Hollow Leasing, Inc.,
M2000-02112-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Trial Court Judge: J. O. Bond, Judge
In this appeal, the defendant-employer contends the trial court abused its discretion by (1) awarding the plaintiff-employee a default judgment after the defendant failed to obey an order compelling discovery, and by (2) denying its motion for a new trial. As discussed below, the panel has concluded the judgment should be affirmed.

State of Tennessee v. Adrian S. Lennox
M2000-02869-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Steve R. Dozier

The defendant, Adrian S. Lennox, was convicted by a jury of aggravated burglary, vandalism, felony evading arrest and driving on a revoked license. The defendant was then sentenced as a Range II offender to nine years on the aggravated burglary conviction, three years on the vandalism conviction, five years on the felony evading arrest conviction, and six months on the conviction for driving on a revoked license. The trial court ordered that the aggravated burglary and the felony evading sentences run consecutively. On appeal, the defendant argues that (1) the evidence is insufficient to support the defendant's convictions, (2) the trial court improperly denied the defendant's motion for the preparation of trial transcripts prior to his motion for new trial hearing, and (3) the trial court improperly sentenced the defendant. We affirm the judgment of the trial court.

State of Tennessee v. Jon Robert Goodale
M2000-02140-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Jon Goodale, was convicted of first degree premeditated murder, felony murder, and especially aggravated robbery in the Criminal Court of Davidson County. The first conviction was merged into the felony murder conviction and the defendant was sentenced to life. The trial court then conducted a sentencing hearing and imposed a twenty-five year sentence for the especially aggravated robbery to be served consecutive to the life sentence. In his appeal as of right pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the defendant argues that (1) the evidence presented at trial was insufficient to support his convictions, (2) the trial court erred in failing to instruct the jury concerning accessory after the fact as a lesser-included offense to all charges, and (3) the sentence imposed by the trial court is excessive. We affirm the judgment of the trial court.

Quincy Bledsoe v. State of Tennessee
W2000-02701-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

The appellant, Quincy Bledsoe, appeals from the dismissal of his petition for post-conviction relief by the Fayette County Circuit Court. In 1997, Bledsoe pled guilty to aggravated kidnapping and attempted felony escape and received an effective nine-year Department of Correction sentence as a violent offender. On appeal, Bledsoe seeks to set aside his convictions upon grounds that his pleas were "based upon an uncounseled statement that was not knowingly and voluntarily given." Finding this issue without merit, the judgment of the post-conviction court is affirmed.

Karl Hamilton, a.k.a. R. Prewitt v. State of Tennessee
W2000-02240-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

Petitioner appeals the order of the Shelby County Criminal Court dismissing his petition for post-conviction relief. Following an evidentiary hearing, the court held that the petition was time-barred by the statute of limitations. After a thorough review of the record, we conclude that the petition was filed timely, and reverse the decision of the post-conviction court.

State of Tennessee v. Doney D. Miles
W2000-02587-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Chris B. Craft

The defendant appeals his conviction for aggravated robbery and sentence of eight years and six months, arguing: (1) there was insufficient evidence to support his conviction; (2) the trial court erred in allowing hearsay into evidence under the excited utterance exception; (3) the trial court erroneously failed to charge the jury on lesser-included offenses; and (4) his sentence is excessive. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Marcus J. Turco
W2001-01085-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge John P. Colton, Jr.

This is an appeal by the State of Tennessee from an order granting the defendant judicial diversion for the offense of sexual battery. This order was the result of a Tenn. R. Crim. P. 35 motion to reduce a previously ordered sentence of one year in the county jail with all time suspended and supervised probation for one year. Although the Tenn. R. Crim. P. 35 motion was timely filed, the trial court did not act upon the motion until after the original probated sentence had been fully served and expired. Two issues of first impression are presented in this appeal. We conclude that (1) judicial diversion is not a “sentence” and, therefore, may not be granted as Rule 35 relief; and (2) a trial court may not modify a sentence under Rule 35 after the sentence has been fully served and expired. Accordingly, we reverse the judgment of the trial court.

State of Tennessee v. Marcus J. Turco - Concurring
W2001-01085-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.

I join with the majority in concluding that the trial court was without authority to modify the defendant’s sentence after the sentence had expired. I write separately because I also find that the trial court was without authority to grant judicial diversion in this case even if the sentence had not expired. Absent appropriate legislation, the trial court is without authority to invent its own sentencing programs.

State of Tennessee v. Paul H. Clever
W2000-01810-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant pled guilty to driving under the influence and was sentenced as a multiple offender. In this appeal as of right, the defendant alleges that (1) the trial court erred in finding that he was a third offender for purposes of sentencing, and (2) the DUI sentencing statute is unconstitutional because it is vague and has an ex post facto effect. After careful review, we affirm the defendant's conviction and sentence.

State of Tennessee v. Eric Terrell Glover
W2000-01278-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

In July of 1999, a Fayette County Grand Jury indicted the appellant, Eric Terrell Glover, for the following offenses: (1) first-degree premeditated murder; (2) first-degree felony murder; (3) especially aggravated kidnapping; and (4) especially aggravated robbery. Following a jury trial, Glover was convicted on all charges and, in accordance with the jury's verdict, was sentenced to life imprisonment for first-degree premeditated murder. For his convictions of especially aggravated kidnapping and especially aggravated robbery, Glover was sentenced, as a violent offender, to concurrent twenty year sentences on each charge, with these sentences running concurrently to his life sentence. On appeal, Glover challenges the sufficiency of the evidence supporting his convictions as a principal offender under a theory of criminal responsibility for the conduct of another. He argues that the proof, at best, supports only the subordinate criminal responsibility of "facilitating." After review, we find no error and affirm the judgments of the trial court.

SUSAn Mason v. Old Time Pottery, Inc.,
M2000-00226-WC-R3-CV
Authoring Judge: Carol Catalano, Sp.J.,
Trial Court Judge: Don R. Ash, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Ms. Susan Mason, appeals the judgment of the trial court dismissing the case at the conclusion of trial after finding that Ms. Mason did not sustain a compensable workers' compensation injury because did not carry her burden of proof that the fall she had while working for the defendant, Old Time Pottery, aggravated her pre-existing condition and/ or caused her to have back surgery. The trial court also ruled that had it found that this had been a work-related injury it would have awarded Ms. Mason a 35% permanent partial disability to the body as a whole. For the reasons set out in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2); Judgment of the Chancery Court Affirmed CAROL CATALANO, SP.J.,, in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Luther E. Cantrell, Jr., Nashville, Tennessee, for the appellant, Susan Mason. Robert R. Davies, Nashville, Tennessee, for the appellee, Old Time Pottery. E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, James Farmer, Director of the Division of Workers' Compensation, Tennessee Department of Labor, Second Injury Fund. OPINION Ms. Mason was 39 years old at the time of her slip and fall accident, which occurred on November 11, 1997, while working for the defendant, Old Time Pottery, Inc. Ms. Mason has an eleventh (11th) grade education. In the past, she has owned and operated an antique business; and worked as a cake decorator and floral designer. She had lived in Virginia all her life until moving to Murfreesboro, Tennessee, in June of 1997. Ms. Mason suffered from depression and had attempted suicide three different times before moving to Tennessee. She also had a 17 year history of back pain and right hip and leg pain. While in Virginia, she was under the treatment of an orthopedic surgeon and had applied for Social Security Disability benefits in November of 1996. On June 3, 1997, Ms. Mason went to work for the defendant as a floral designer. She also worked part time at another flower shop. On September 16, 1997, she saw orthopedic surgeon, Dr. Thomas O'Brien, where she reported a long his tory of ineffective treatments for back pain. She reported taking Lortab and Motrin for back and leg pain, and Prozac and Xanax for depression and anxiety. On September 23, 1997, Dr. O'Brien, after reviewing Ms. Mason's MRI, diagnosed "decreased disc signal consistent with degenerative disc disease at L4-5 and L5-S1 with bulges that were present at both levels." According to Dr. O'Brien's records on that date: I had a lengthy discussion with Ms. Mason regarding her treatment options and the fact that she had exhausted non-operative treatment measures. She has had symptoms now for 16 years and they have steadily been more progressive since she moved to Tennessee from Virginia. In the past she has been treated with physical therapy, multiple injections, and narcotic medications. Ms. Mason's treatment options would involve a decompression posterior lumbar interbody fusion with BAK or Ray cages. Becauseshe just started a job three months ago, we will plan on doing this at the end of the year. Dr. O'Brien scheduled a follow-up appointment in two months at which time the surgery would be scheduled. Ms. Mason maintained that in her discussions with Dr. O'Brien there was not anything definite done as far as making plans for future surgeryor any in depth discussions regarding the type of procedure to be performed. Ms. Mason also sought treatment for depression at The Guidance Center in Murfreesboro which was under the direction of Dr. Libby McCauley, a psychiatrist. On September 29, 1997, she met with therapist Mr. Bart Andrews whose report indicates that Ms. Mason "report[ed] chronic back pain that is making going to work on a daily basis quite difficult and is due to have major surgery as soon as her probation period is complete at her job." Ms. Mason testified that she may have discussed this with her therapist but did not tell him that she had back surgery scheduled and did not know why her therapist had charted this in her history. -2-

Owner-Operator Independent Drivers Association, Inc., et al vs. Concord EFS, Inc., et al
M1999-02560-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Cornelia A. Clark
The plaintiffs, who are or independent truck drivers and their representatives, claim they are intended third-party beneficiaries of certain contracts between Flying J, Inc., Pilot Corporation, and EFS National Bank, Inc. The plaintiffs contend that Flying J, Inc. and Pilot Corporation breached their contracts with EFS National Bank, Inc. by improperly imposing surcharges on diesel fuel purchased with certain credit cards. For the alleged breaches, the plaintiffs seek damages and injunctive relief. After thorough consideration and due deliberation, we conclude that the plaintiffs are not intended third-party beneficiaries of the contracts and thus have no standing to sue. Accordingly, we reverse the judgment of the Court of Appeals.

Dan Johnson v. Corrections Corporation of America,
W2001-00763-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jon Kerry Blackwood

State of Tennessee v. Charlie Logan
M2001-00804-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge John D. Wootten, Jr.

The defendant was indicted on twelve counts of aggravated rape and six counts of statutory rape. He pled guilty to four counts of statutory rape, a Class E felony, with an agreed sentence of two years on each count, to be suspended upon service of thirty days. The trial court ordered the sentences to run consecutively, which ruling the defendant now appeals. The defendant also appeals the court's denial of his application for judicial diversion. We affirm the judgment of the trial court.

Kennedy v. Titan Specialized Services
M2001-02696-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Robert E. Corlew, III
On appeal from Sessions Court, the Chancellor allowed a set-off on the indebtedness. Plaintiff appeals, contending defendant filed no pleading which would entitle him to a set-off. We affirm.

Walter E. Preston v. W.G. Lutche
M2001-03153-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Appellant filed, pro se, a Petition for Writ of Certiorari. He was convicted of a Class X felony in 1982 and now seeks to rescind his April 9, 1986 waiver executed pursuant to Tennessee Code Annotated section 41-21-236. The trial court dismissed the Petition for failure of Appellant to respond to an Order requiring him to submit a copy of his inmate trust account showing all activity in the account for the six months immediately prior to the filing of the action. The trial court did not abuse its discretion in dismissing the Petition on such basis. We hold, on the merits, that Appellant is not entitled to the relief sought. We affirm the trial court.

Wendy King vs. Timothy King
M2000-00424-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Charles D. Haston, Sr.
This appeal arises from a divorce and custody dispute. The trial court awarded custody of the parties' four minor children to the father, and the court awarded the mother liberal visitation. The mother appeals the decision of the court below. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

David Chilton v. James Austin
M2001-02891-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
In an action between former partners, their various claims against each other were submitted to the jury. The jury returned a verdict that did not award damages to either side. One of the partners appeals, asserting that issues were submitted to the jury that should not have been submitted, that there is no evidence to support the verdict, and that the verdict was a result of passion and prejudice because it was returned the day after the tragedy in New York and Washington on September 11, 2001. We hold that the appellant waived any objection to the issues submitted to the jury, and that the objection to the verdict based on the lack of evidence cannot be sustained. We also fail to find any evidence that the events of September 11, 2001 had any effect on the jury. Therefore we affirm.

State of Tennessee v. Johnathan Trice
W2000-02740-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

The appellant, Jonathan Trice, pled guilty in the Chester County Circuit Court to five counts of theft and was sentenced to a total of four years incarceration in the Tennessee Department of Correction. The appellant's sentence was then suspended, and the appellant was granted service in a community corrections program. Due to the appellant's failure to comply with the terms of community corrections, the trial court revoked the appellant's suspended sentence and ordered that the appellant serve his sentence in confinement as originally ordered. The appellant appeals this ruling. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Larry Mitchell Watson
E2000-01923-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Lillie Ann Sells

The defendant, Larry Mitchel Watson, appeals his conviction and sentence for felony reckless endangerment in the Cumberland County Criminal Court. On appeal, the defendant argues that the evidence was insufficient to sustain his felony reckless endangerment conviction and that the trial court improperly sentenced him. Because the jury was erroneously instructed on felony reckless endangerment as a lesser-included offense of aggravated assault, we reverse his conviction for that offense and remand the cause for a new trial in accordance with this opinion.

State vs. Larry Allen Hicks
E1999-00957-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Douglas A. Meyer

State vs. Larry Allen Hicks
E1999-00957-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Douglas A. Meyer

State of Tennessee v. Larry Allen Hicks
E1999-00957-SC-R11-CV
Trial Court Judge: Douglas A. Meyer

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State of Tennessee v. Charles Goode
W2000-02267-CCA-R3-CO
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge James C. Beasley, Jr.

Charles Goode was convicted by a jury of aggravated rape, and was sentenced to twenty-five (25) years in the Department of Correction. He challenges the sufficiency of the evidence and the actions of the judge in sentencing him to serve the maximum sentence. We affirm the judgment of the trial court.