*1 prop- result, objected If on contrary.” Id. if had court to the As a defendants plaintiff ground, that had er to-wit: expenses physi- this case were from treating phy- failed to show whether designated by cians Batesville Casket Com- by designated or selected sicians were proof not pany then Plaintiff did need designated evidence could physicians, necessity reasonableness and and the Chan- for an presented have been should affirmed. cellor Under these of those issues. resolution circumstances, have waived defendants prescription Exhibit contains this issue. consideration of and cancelled made out to records checks medical groups. various doctors and How only objection case, In this Defendant’s ever, necessary it is not determine concerning neces- was the “standard” expenses whether these were attributable sary expenses was met. reasonable Thus, designated physicians Defen has waived consideration because Defendant treating physi- object this issue on whether failed to evidence on the dant designated. cians (It were ground. should noted that correct doctors seen in some of the same that were conclusion, past case were consulted in Sickness adjudged are affirmed. Costs and Accident claims that this record against the Defendant. by complaint no Defendant about reveals providers.) doctors and health care these DROWOTA, C.J., HARBISON, nor presented Neither Plaintiff Defendant JJ., O’BRIEN, concur. COOPER and physicians on whether these were
evidence Thus, designated by Defendant. silent on this issue. This Court
record is very
dealt with a similar situation Delta, Inc., v. Delvan
Williams (Tenn.1988). We this issue addressed
as follows:
The record in this case silent as to physicians or not
whether plaintiff designated by were
treated plaintiff
employer or referred to physician. elementary designated It is employee seeks the advan-
that where presumption tage created Rus- Tennessee, Appellant, STATE of sell, employee has the burden showing treating physicians PRINCE, Appellee. Lee Robert by the or doc- designated employer were designated physician. selected tors Tennessee, Appellant, STATE of ease, plaintiff presented In this when bills, medical defendants her numerous plaintiff was on the objected McDOWELL, Appellee. John Dewitt prove those competent necessary reasonable. charges were Tennessee, Supreme However, Russell, plaintiff was under at Jackson. had incurred entitled to show she 4, 1989. Dec. expenses they in- medical if those employer’s instance of curred at the or doctors to whom she been
doctors objection Thus
referred. defendants’ ground. proper not made on the
See also
Charles W. Gen. Re- Ballard, porter, Crippen Atty. Norma Asst. Gen., Bettye Springfield-Carter, Asst. Gen., Nashville, Atty. appellant. Heldman, Hollins, Wagster & J. Russell P.C., Nashville, Yarbrough, appellees. OPINION O’BRIEN, Justice. post-conviction cases were consol- These appeal purposes in idated for order to eluci- appropriate procedures in of this date cases substantially They present nature. Both defendants same facts and issues. convicted of felonies habitual criminal statute and found to be Their habitual criminals. grounded part
convictions were on sever- petit al larceny made in offenses were based tences on prior years. concurrently set to run enhanced robbery for armed to be served sentence unsuccessfully pursued The defendants consecutively to the concurrent sentences. appeals direct of their convictions for the was affirmed the Court *3 triggering felonies and the enhancement of Appeals Criminal 20 November 1980. their They sentences as habitual criminals. post-conviction later raised defendant, counsel, unsuccessful through challenges to these same convictions. petition alleging post-conviction filed post-conviction Each has now filed a uncon- criminal sentences were tion in which he attacks the of his grounds. He stitutional on several also prior guilty pleas. The trial court each charged his trial counsel with ineffective held right challenge case that the representation for raise failure to these pleas guilty by had been foreclosed appeal. The trial issues on direct court prior and the statute of limita- petition found the to be without merit. tions. evidentiary hear- was dismissed without an ing. by The was affirmed presented by The issues these cases two Appeals January Court of Criminal 1984. are: appeal, application denied an for 1. Did these defendants their waive concurring only. in results right challenge prior guilty pleas by having pro On filed a challenges failed to include those 10 October post-conviction in prior petition Corpus” se Writ of attack- “Petition for Habeas ing a by Shelby County. sentence enhanced those Criminal Court The plea convictions? va- primary petition intent of this was to imposed cate life sentences in his If guilty pleas not and the are deter- grounds habitual criminal trial. One void, mined to be then must the enhanced alleged petition prior was that sentence be vacated? pleas September on 14 1976 in entered five 3. Did these defendants their waive (5) robbery involuntary cases right to rely on the invalidity of the knowledgeable because neither underlying convictions used to establish him of nor his counsel advised his failing status by habitual criminal fur- against He self-incrimination. to attack in prior post- said convictions alleged ther him failure to warn proceedings? might be used in fur- future to enhance LEE ROBERT PRINCE ther invol- prosecutions rendered his Lee untary intelligently Robert Prince was convicted in the and not submitted. County Shelby petition The found Criminal Court under three trial court (3) put application indictments in 1980. He was to trial treated as an should be (2) robbery for armed two relief. offenses of He further found petit larceny, complained all offenses under the matters been waived, 39-1-801, T.C.A. the Habitual determined hav- previously Criminal and/or § (11) Statute. sentenced to raised in eleven not been (29) days twenty-nine petition September months in each relief filed on (10) petit petition larceny cases and 1982. He also held that the to ten robbery. pursu- In a the statute of limitations armed bifurcated barred (3) petition The received three life sen- ant 40-30-102.1 to T.C.A. § as an tences habitual criminal. The sen- was dismissed. 40-30-102, (3) years final
1. T.C.A. as amended Ch. three of the date of action within 1986, imposes appellate post-con- highest Acts a bar to which Pub. state original relief viction unless a is filed is taken from the conviction. therefor raising Boyk procedure split proper in a Appeals, of Criminal in-Mackey3 claims. decision, re- the trial court and reversed They instructions. concurred manded with finding did not MCDOWELL DEWITT JOHN allege any grounds corpus relief for habeas and 29 Octo- 1 December 1969 Between properly Tennessee law and was
under McDowell submitted John Dewitt ber 1980 re- viewed as (9) felo- involving nine (8) guilty pleas They lief. held that under case law Subsequently he was convicted ny counts. (3) by the three was not barred receiving property stolen jury in a year statute of limitations.2 one not less than sentenced to serve Swanson, Citing *4 (3) in the three more than year nor and State v. (Tenn.1988) 732 of ut- also convicted penitentiary. He was (Tenn.1987), authority, 268 S.W.2d and sentenced tering forged instrument a presented a majority found that Prince had (3) (2) more than two nor to not less than required claim for relief colorable which an He was found to be years confinement. draft a com- appointment of counsel to and the criminal to under the petent petition be addressed to property was enhanced receiving stolen post-conviction procedure light laws. In con- 1983 these a life term. On 6 October of Swanson and McClintock analysis their by the affirmed Court victions were challenge they that the failure to found 1983 5 December Appeals. On Criminal underlying guilty pleas in the earlier permission application the defendant’s issue, preclude did not waive the or a denied this Court. to was on the life if the later attack sentences defendant filed date On guilty pleas were found be invalid. relief at- pro petition se They found that the record submitted to criminal conviction. tacking his habitual any defect in the indicate them did coun- assistance of charged ineffective guilty pleas had been established at the per- It is misconduct. prosecutorial sel and petition time was of the first and therefore complaints to note that one of tinent In not then an available for relief. charged that counsel alleging ineffective view, the McClintock opinion in 1987 (8) utilized eight prior convictions one of his suggestion multiple that the was the first proceedings result- in the habitual petitions might pro- be consolidated in one plea. His com- illegal guilty ed from pro- ceeding. They remanded for further counsel failed to that his trial plaint was including appointment of counsel ceedings argued on file a motion which underlying identity of the to establish rear- it could not be issue and therefore sepa- to determine whether convictions and appointed in appeal. Counsel was gued on crimi- petitions to attack the habitual rate evidentiary hearing and an the trial court in the nal conviction could be consolidated findings judge filed The trial written held. cause. and denied conclusions law of fact and May This action 18 1984. petition disputed the Daughtrey in dissent Judge April appealed and on 10 1985 the too was holding that Prince’s claim majority’s Appeals affirmed of Criminal under T.C.A. 40-30-112 not been waived ap- Permission to judgment. trial court’s did not the Swanson rule and concluded July on 8 denied this Court peal was expressed the view further apply. She 1985. rule, a new did not create 1987 defendant filed recog 30 December had not been On recognize a claim that relief. second merely established past, in the but nized Alabama, State, Boykin v. U.S. 89 S.Ct. (Tenn.Cr.App. 238, 395 2. Abston v. S.W.2d 487 749 Mackey, (1969); State v. 274 23 L.Ed.2d 1988). (Tenn.1977). S.W.2d 337 find- the trial court’s conjunction with entirely to the In was devoted complaint had been petitioner’s guilty plea submissions noted the Court of Crimi- waived, majority of apply heretofore and did not fashion Appeals nal found: to his habitual criminal conviction. allegation petition contained a blank convic- to set aside petitioner seeks “The petitioner “the trial court ‘addressed the challenged in his to those tions unrelated him personally open court’ and informed ‘no grounds that on the first rights that he of the constitutional [by the trial made mention whatever was waiving significant consequences and the compelled right not to be court] exception guilty pleas, with the was a and that there incriminate himself’ right made of the no mention whatever was convictions, to advise failure, compelled incriminate himself.” against him his ‘constitutional charged the failure of the trial Mackey, See self-incrimination.’ him of his constitutional judge to advise (Tenn.1977). right against rendered self-incrimination Evatt, Rounsaville the convictions on these void. (Tenn.1987), man- Supreme our Upon consideration of motion of to assure that dated that order record, and on voluntary, intelligent and pleas are *5 judge petition the for dismissed warnings provide judge must evidentiary hearing. tion relief an without con- among things, one’s against, other petitioner’s prior The trial court found right not to be a witness stitutional heard petition for relief was court, in this against himself. The trial May He found that the and denied in a instance, determine on must therefore any the
prior petition did not mention of petitioner en- the factual basis whether complained of in the latter irregularities pleas in accordance guilty tered valid petition. petition He held that the was The fact Mackey guidelines. with the and that the by T.C.A. 40-30-102 barred § as well as prior that the grounds were waived stated place in Shel- took triggering convictions them the seven by failure to raise within an attack County not mean that by. does the last of elapsed since which necessarily include the latter must of held complained of. He the convictions infirmity in the former.” allegations of vio- rights petitioner claimed were that the dissent, no rea- Judge Daughtrey, saw of prior to each lated had been existence filed McDowell why the son grounds pleas and thus were not valid the current not have included 1984 could filed a notice complaint. for The defendant validity. claim, assuming it had of preparation appeal and a motion of of counsel. appointment the record and
Citing 40-30-109 T.C.A. CONCLUSION competently drafted found some confusion appears There be records of pleadings, files and and that the of the lower among the recent decisions conclusively showed that the court Roun interpreting courts any relief. entitled to tioner was not review these cases saville. We elected to appointment of coun- denied the motion misconcep dispel in order to some transcript at preparation sel and apparent. At the have become tions which expense. that neither McClin say outset we wish recognize any nor Rounsaville decision, new tock split in a September On 14 The intent of those right. reversed the Appeals of Criminal the Court reemphasize to restate decisions was They held that judgment of the trial court. preexisting State law. requirements by T.C.A. not barred grounds pro nor create new They neither case for an and remanded 40-30-102 purpose is remedies. vide additional Their hearing. evidentiary a sen- attacking designate procedures ap- post-conviction petition prior guilty plea pellants by those to follow in order that the issues tence enhanced may expeditious receive review can be no waiver for involved there appellate courts. reason. posed The first issue here is whether 39-1-801, (1982) seq. de et T.C.A. § chal- these defendants waived procedure prescribed the fined and having lenge guilty pleas by those who enhancement challenges failed to include those in a as habitual criminals. fell within its ambit post-conviction petition attacking a sen- course, of an question effective Of convic- plea tence enhanced those a right in of a federal constitutional waiver tions. proceeding governed by fed [guilty plea] Smith supra at Boykin, 395 U.S. eral standards. (Tenn.Cr.App.1988), the court cited McClin 1712. If a p. p. 89 S.Ct. at tock, supra, applicable for the rule: has convicted as habitual been face, prior judg- on its invalid a “[U]Iess statute, recidivist under the Tennessee person- ment of in a court convictions which evidence subject jurisdiction cannot al and matter stage federal denied at a critical has been collaterally attacked as an crim right ... his conviction proceeding challenged in which the con- punish inal and enhancement punishment. viction used to enhance life See imprisonment ment to void. attacking fa- The authorized route for (E.D. Lane, F.Supp. Mullins valid, cially final of conviction Tenn.1979). that, if follows a defen byis Act. Post-Conviction Procedure are determined to be dant’s evidentiary hearing An can afforded void, must be then enhanced sentence in that forum and not *6 proceeding and appropriate in an vacated prior in which such is used. conviction original trial sentence reinstated. invalidated, the Once enhancement value nullified, expos- of the conviction is also a Does defendant waive his ing the enhanced sentence on the subse- having by sentence vacate the enhanced quent conviction to collateral attack any invalidity failed establish well.” filing his first before foregoing We reiterate that attacking an enhanced sen principle newly recognized was not tence? McClintock, but, on based an exhaustive Although not. hold that he does We authorities, merely of citation restates the context, dealing in a have different we long law as it has existed. A defendant question substantially this answered by post- cannot maintain a collateral attack p. 735, supra, in which Swanson on of conviction his status habitual crimi the court said: nality by validity attacking predi his of making cate Prior to convictions. such simple petitioner has The fact that a “... conviction, attack on an habitual criminal apple had one bite at the by appropriate petition he must in the court ipso preclude does not another bite facto place where his earlier convictiontook seek petitioner that no can show when hearing to determine understanding knowing and waiver of any of such conviction. If he made, or that the relief proceedings in those he then is successful previously determined claim was not exposes the enhanced sentence on the sub sequent attack as collateral amendment to T.C.A. Prior to p. supra, well. 272. any 40-30-102 there was statute filing relating kind make a limitations
Since a defendant cannot
They
in a
relief.
prior guilty pleas
petitions
collateral attack
us,
piecemeal, disorderly procession,
came in a
In cases such as these before
where
plea
usually
interpretation
based on the
convictions and the habitual
place in the same
criminal conviction took
governing
latest decisions of the courts
forum,
by
matters,
defendant,
judicial economy is best served
such
the individual
filed,
petitions
requiring the
to be
consol-
By
or
his inmate counsel.
the enact-
court,
idated and heard in the same
at the
legislature
ment of that amendment the
same time.
three-year
endeavored to establish
bar
post-con-
for consideration of
pro
Robert Lee Prince in
se
viction relief.
alleged
prior guilty pleas
that his
entered
(5) robbery
September
on 14
1976 in five
exceptions
With certain
which we
involuntary
knowledge-
cases were
and not
opinion,
upon
set out
it is incumbent
nor his
able because neither the
invalidity
a defendant to establish the
right against
him
counsel advised
of his
prior guilty pleas
procedural
before he can
self-incrimination. There is no evidence
ly launch a collateral attack on a subse
any prior
this record of
direct
quent
sentence on
proceedings
respect
collateral
to the
previously
If
it
basis.
he has not
done so
guilty plea judgments against him. The
must be established at an
hear
transcript
guilty plea proceedings
purpose
for that
that he has not know
us,
impossible
not before
therefore it is
ingly
understandingly
waived
this Court to consider their constitutional
grounds may
have which
under
would
validity.
If there has been no
prior guilty plea.
mine the
of a
guilty plea con-
conviction attack on these
The fact cannot be established on a silent
victions his
is not barred. He is
Boykin,
p.
record.
We
procedural pos
Mackey,
in
noted in
v.
presently filed and
some
State
may, in the exercise of its
supra,
In
that it
appellate
ture either at trial or
level.
power
that the courts
supervisory
to insure
pro
post-conviction
those cases where a
justice
fairness and
of this State afford
pending
ceeding is
which mounts
collat
require
defendants in criminal cases
strict-
eral attack on an habitual criminal convic
those mandated
er standards than
invalidity
tion on the
of the
of one or
basis
(10) years la-
Boykin decision. Some ten
prior guilty plea
pro
more
ter,
Rounsaville, supra,
in
the Court reit-
ceedings
stayed
give the
will be
defen
admonition,4 saying:
erated
opportunity
test the constitution
dant an
prior convictions in the
“It
the intention of this Court that the
al
of those
Mackey
fully complied
they
mandates of
be
court where
occurred.
may
subsequent proceeding
supra, p.
added a
be used in a
In
273 the court
requirement,
any
accepting
subsequent
further
plea
"...
of-
enhance the
guilty
of
must
it clear to the defen-
make
fenses.”
resulting judgment
conviction
dant that the
of
right against self-incrimination.
acceptance
stitutional
to the
prerequisite
as a
with
It
dismissed
In this connection
guilty plea.
of a valid
hearing. The
evidentiary
without
judge
body of Rule
we observe
petition for
found that
judge
T.R.Crim.P.,
contain all of
does not
any of
mention
relief did not
Mackey.
comments to
mandates of
latter
in the
complained of
irregularities
Mackey contains
ad-
that rule warn that
by T.C.A.
it was barred
petition and that
requirements. We reiterate
ditional
rights
held that the
40-30-102.
guilty
Mackey controls
acceptance
of
in
had been
violated
complained were
tioner
pleas.”
pleas and
prior to each
existence
by the tri
Mackey
mandated advice
complaint.
grounds for
not valid
thus were
consequences of a
al
about
issues
construction
In view of our
beyond
requirements
plea
went
judg
majority
in the
we concur
involved
Mackey
refer
Boykin.
In
there are two
Appeals that
of the Court
Criminal
ment
necessity
advising defen
ences to the
remanded to
should be
these cases
the use of
convictions
dants about
of counsel
appointment
court for
pun
determining
factors
pro
compliance
to which defendant
ishment for the offense
in accordance with Swan
ceeding statutes
fore
guilty. That advice also
pleading
hearing
including a
son v.
supra,
respective petitions.
the future use of
tells
merits of the
Newsome, the future use of the case under considera
the recent case
out
(Tenn.1989), this
set
guilty plea
accepted.
FONES, Justice,
v.
484
upon
judgment.
Goodner
dissenting.
(Tenn.Crim.App.) cert. denied
364
S.W.2d
agree
opinion
I
majority
cannot
with the
(Tenn.1972).”
732 S.W.2d
in its conclusion that Prince and McDowell
stat-
paragraph wherein this Court
right
challenge
have not waived their
to
In the
underlying
respect
to
guilty pleas
to enhance a
conclusions with
used
ed
triggering
on the
procedure applicable
offense to habitual criminal sta-
to attacks
tus.
for enhance-
validity
judgments
used
ment,
following appears:
Both
of these defendants have filed
If Defendant files a
post-conviction proceedings and both were
challenge
judg-
conviction relief to
represented by
prior pro-
counsel in the
and is suc-
ment of the first conviction
ceedings.
many years af-
Both were filed
cessful,
could be filed
second
Alabama,
ter Boykin v.
395 U.S.
89
on the second
challenge
to
the sentence
S.Ct.
ment sep- to habitual criminal status WEEDMAN, Plaintiff-Appellee, Larry from proceedings, arate were immune at- seeking to tack in the first in- Latimer, adjudication.
validate the habitual criminal H. Allen and William SEARCY It would seem to follow that McDowell Defendants-Appellants. eight separate could file consecutive Tennessee, Supreme
tions, attacking each one of the “col- at Jackson. judgments” running lateral without afoul of the waiver statute. Dec. ground pursuant A relief waived 40-30-112 if “failed to T.C.A.
present any proceed- it for determination in competent jurisdiction a court of before
in which the could have been
presented.” Shelby County criminal court of competent jurisdiction for all convictions offenses
of Prince and McDowell. There are court, eight judges
divisions of that single it single
but court with clerk jurisdiction purposes. All of the “col- judgments”
lateral used for enhancement subject to in any proceeding attack
brought by Prince or in- McDowell
volved the of their crimi-
nal before and after McClin-
tock. Both defendants raise failed to underlying their
proceedings. Neither of proceedings now before the Court as-
sert any reason for the failure to raise the pro-
self-incrimination claim the
ceedings. Under decisions numerous Ap- the Court of Criminal
peals, pre- are those constitutional claims pursuant
sumed to have been waived 40-30-112. I can no
T.C.A. discern rea- departure princi-
son for this from settled
ples procedure law and that we will be
compelled to return to cases. Campbell, Campbell, Conley, E.
Damon Smith, Elam, Elam, Glasgow, Moss Tom & Aeree, for defen- City, Union Tanner & dants-appellants.