IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
June 29, 1999
JAMES A. LEMAY ) Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9807-CH-00397
VS. )
) Davidson Chancery
) No. 96-3076-II
STATE OF TENNESSEE, )
DEPARTMENT OF CORRECTION, )
)
Respondent/Appellant. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. MCCOY, CHANCELLOR
ROBERT J. MENDES
St. Cloud Corner, Suite 575
500 Church Street
Nashville, Tennessee 37219
Attorney for Petitioner/Appellee
JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
c/o Attorney General and Reporter
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
Attorney for Respondent/Appellant
REVERSED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
WOODALL, J.
OPINION
The question we must decide is whether a conditional commutation of
a prison sentence may be revoked at any time during the original sentence, or can it
only be revoked during the commuted sentence? The Chancery Court of Davidson
County entered a declaratory judgment that an attempted revocation after the
expiration of the commuted sentence was void. We reverse.
I.
The facts of this case are fairly simple, although Mr. Lemay has had a
colorful career in the Tennessee prison system. In 1969 he received a ninety-nine
year prison sentence in Lewis County for first degree murder. In the scandal-tinged
last days of the Blanton administration, Governor Blanton conditionally commuted Mr.
Lemay’s sentence to thirty years. Governor Alexander temporarily held up the
commutation issued by Governor Blanton, but, apparently convinced that Mr. Lemay’s
case was legitimate, Governor Alexander issued his own conditional commutation in
February of 1979. His commutation was identical to Governor Blanton’s; each
contained the following conditions:
This commutation is granted conditioned that the
aforesaid prisoner obey all the rules and regulations of the
authority having custody of him, lead the life of a good
citizen, obey all the laws of the Nation, States, and
Municipalities and shall not be guilty of other conduct, in
the opinion of the Governor, improper and illegal. In the
event any of the foregoing conditions are violated, the
Governor, at his option (or on the recommendation of the
State Board of Pardons, Paroles and Probation) may
issue a warrant for the arrest and return of said prisoner
to the Warden of the State Penitentiary to undergo
remainder of said original or commuted sentence, as
determined by the Governor. The Governor shall be sole
judge as to whether or not any of the aforesaid conditions
have been violated, and there shall be no review of his
action thereon by any Court whatsoever.
Almost simultaneously, Mr. Lemay, while on work release and employed
by the state comptroller’s office, transferred $20,000 from the state treasury to a
private bank account. Then in May of 1979 he escaped from custody.
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Mr. Lemay remained free until December of 1979. In May of 1980 he
was sentenced to three years of additional time on each of five counts of obtaining
property under false pretenses. He also got another year for escape. In November
of 1980 Governor Alexander revoked Mr. Lemay’s commutation.
In June of 1996 Mr. Lemay asked the Department of Correction for a
declaratory order that he was entitled to immediate release. He argued that Governor
Blanton’s original commutation was still in effect, and that with all the sentence credits
to which he was entitled, the thirty year commuted sentence had long since expired.
The Department refused to issue a declaratory order and Mr. Lemay
filed a petition for a declaratory judgment in the Chancery Court of Davidson County.
See Tenn. Code Ann. § 4-5-224. In an interlocutory order, the chancellor held that
Governor Alexander’s revocation in November of 1980 only revoked his own
commutation and not Governor Blanton’s. Therefore the sentence still stood as
commuted to thirty years. Apparently this order prompted Governor Sundquist in
December of 1997 to issue his own order specifically revoking the Blanton
commutation.
The proof in the record showed that with all credits a commuted thirty
year sentence expired on January 16, 1986. This brings us to the ultimate question
in this case: Is a revocation within the term of the original sentence effective after the
expiration of a commuted sentence? The chancellor in her final order held that our
Supreme Court had ruled that a revocation of a commuted sentence must take place
before the commuted sentence expires. See Carroll v. Raney, 953 S.W.2d 657
(Tenn. 1997). Therefore, the chancellor held that Governor Sundquist’s revocation
came too late, and that Mr. Lemay was being illegally held.
II.
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The Governor’s power to grant “reprieves and pardons” has been well
recognized in many appellate court decisions. See Carroll v. Raney, 953 S.W.2d 657
(Tenn. 1997); Ricks v. State, 882 S.W.2d 387 (Tenn. Cr. App. 1994); White v. State,
717 S.W.2d 309 (Tenn. Cr. App. 1986). It will suffice to say here that the power
encompasses the right to commute a sentence, Ricks v. State, 882 S.W.2d 387
(Tenn. Cr. App. 1994) and to attach conditions or restrictions to a commuted sentence
“that are reasonable, legal, and possible for the defendant to perform.” Carroll v.
Raney, 953 S.W.2d at 660. The conditions “must appear on the face of the paper,
and must be clear and specific.” Id. If the prisoner violates the conditions, the
commutation may be revoked. White v. State, 717 S.W.2d 309 (Tenn. Cr. App.
1986).
Mr. Lemay argues that Governor Blanton’s commutation was
unconditional because the conditions were on the back of the form, and because the
conditions were not clear and specific. We reject both arguments. The conditions
appear on the form just above the commutation language itself and on the same page
containing the Governor’s signature. In order to get to the commutation one must
pass over the conditions. Therefore, the conditions are on the face of the sheet.
They are also identical to the conditions imposed on Mr. White, which the court
approved in White v. State, 717 S.W.2d 309 (Tenn. Cr. App. 1986).
Passing on to the real question, we think the answer lies in
understanding the nature of the Governor’s power. It is clear that the Governor’s
power to grant reprieves and pardons is limited only by the language in the
constitution. Carroll v. Raney, 953 S.W.2d 657 (Tenn. 1997). In granting a pardon
the Governor has the right to place conditions on the grant. State ex rel. Bedford v.
McCorkle, 40 S.W.2d 1015 (Tenn. 1931). When the prisoner accepts the pardon he
accepts it subject to all of its terms and conditions. State ex rel. Rowe v. Connors, 61
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S.W.2d 471 (Tenn. 1933). The conditions are conditions subsequent, making the
pardon null and void if the conditions are violated. 59 Am.Jur.2d Pardon and Parole
§ 2.
When a prisoner receives a pardon, there is no longer any sentence to
be served. Yet, no one seriously questions the power of the Governor to revoke the
pardon when the prisoner violates the conditions. We conclude, therefore, that a
sentence remaining to be served does not have any bearing on the Governor’s power
of revocation.
As we have noted the Governor’s power to commute a sentence is
derived from the power to issue “reprieves and pardons.” T ENN CONST . art. III, § 6;
Ricks v. State, 882 S.W.2d 387 (Tenn. Cr. App. 1994). Therefore, the power is as
complete and unfettered in this area as in the case of pardons. We think it must
follow that the Governor may revoke a commuted sentence at any time before the
original sentence expires.
The only case directly on point so held. In White v. State, 717 S.W.2d
309 (Tenn. Cr. App. 1986), the prisoner’s original ninety-nine year sentence was
commuted to “time served” on the condition that Mr. White “obey all rules . . .”, etc.
When Mr. White subsequently committed other crimes, the governor revoked the
commutation, and the Court of Criminal Appeals held that the governor’s power to
revoke the commutation lasted until the ninety-nine year sentence expired.
Mr. White relied (as Mr. Lemay does) on Rowell v. Dutton, 688 S.W.2d
474 (Tenn. Cr. App. 1985) in which an original sentence of twenty years imposed in
1974 was later commuted to ten to twenty years. In 1983 Mr. Rowell was convicted
of other crimes and the parole board recommended that the governor revoke the
commutation. The governor signed the revocation on November 22, 1983, but the
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court found that the original twenty year sentence (when given all the available credits)
expired on November 15, 1983. Since the original sentence had expired, the court
held that the governor no longer had the power to recommit the prisoner by revoking
the commutation. As the White court recognized, Rowell dealt with an expired original
sentence not an expired commuted sentence. A commuted sentence with conditions
attached may be revoked at any time during the original sentence. Otherwise, in
White when the original sentence was commuted to time served, the conditions would
have been meaningless and the prisoner would have been free of any restraints.
Mr. Lemay also relies on a sentence in the recent Supreme Court case
of Carroll v. Raney, 953 S.W.2d 657 (Tenn. 1997). The Court said, “Upon a finding
that a condition has been violated, the commuted sentence may be revoked by the
Governor, provided that the sentence has not expired.” 953 S.W.2d at 660. If we
were to parse the sentence in isolation, we might conclude that the second use of the
word “sentence” referred back to “commuted sentence” used earlier. But, the Court
cites Rowell v. Dutton, 688 S.W.2d 474 (Tenn. Cr. App. 1985) for the statement, and
we have already noted that the “sentence” that had expired in Rowell was the original
sentence. We do not think the Supreme Court intended to make a major
pronouncement on the governor’s pardoning power in such an off-hand way.
The judgment of the trial court is reversed and the cause is remanded
for any further proceedings necessary. Tax the costs on appeal to the appellee.
_____________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
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_____________________________
WILLIAM B. CAIN, JUDGE
_____________________________
THOMAS T. WOODALL, JUDGE
SITTING BY DESIGNATION
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