IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1997 SESSION
September 30, 1997
Cecil W. Crowson
MARVIN GOODMAN, * Appellate Court Clerk
C.C.A. # 01C01-9607-CR-00286
Appellant, * DAVIDSON COUNTY
VS. * Hon. J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
James G. King Charles W. Burson
222 Second Avenue Attorney General & Reporter
Suite 416 450 James Robertson Parkway
Nashville, TN 37201 Nashville, TN 37243
Lisa Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
Katie Miller
Assistant District Attorney General
222 Second Avenue North
Washington Square, Suite 500
Nashville, TN 37201-1649
OPINION FILED:_______________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
In 1991, the petitioner, Marvin Goodman, was convicted of two
separate drug offenses1 and received concurrent sentences of six and eight years.
In 1993, after a conviction for escape, he received a two-year sentence to be served
consecutively to the 1991 sentences. In this action, the petitioner sought relief on
two different grounds:
(1) that the 1989 Sentencing Reform Act violates the
Separation of Powers Clause of the Tennessee
Constitution; and
(2) that the 1989 Sentencing Reform Act violates the
determinate sentencing law.
After an evidentiary hearing, the trial court denied the petition. We affirm.
The habeas corpus remedy in this state is limited. The writ may be
granted only where a petitioner has established lack of jurisdiction for the order of
confinement or that he is otherwise entitled to immediate release because of the
expiration of his sentence. See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968);
State ex rel. Wade v. Norvell, 443 S.W.2d 839 (Tenn. Crim. App. 1969). Habeas
corpus relief is available in this state only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or
sentence the defendant or that the sentence of imprisonment has otherwise expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,
62 (Tenn. 1992).
Here, the petitioner has neither alleged that the Hamilton County trial
court lacked jurisdiction nor that his sentence has expired. Thus, no claim for
habeas corpus relief has been stated. See Monroe E. Davis v. Jimmy Harrison,
1
The jud gm ent form s are not included in the re cord. This info rm atio n appears in an affidavit
in the technical record.
2
Warden, No. 02C01-9607-CC-00242, slip op. at 4 (Tenn. Crim. App., at Jackson,
July 2, 1997) (holding these identical challenges to the Sentencing Act do not state
a claim for habeas corpus relief).
Had this court been able to reach the merits of the claims, the
petitioner would not have prevailed. The Separation of Powers Clause of the
Tennessee Constitution provides as follows:
Sec. 1. Division of powers.--The powers of the
Government shall be divided into three distinct
departments: the Legislative, Executive, and Judicial.
Sec. 2. Limitation of powers.--No person or persons
belonging to one of these departments shall exercise any
of the powers properly belonging to either of the others,
except in the cases herein directed or permitted.
Tenn. Const. art. II, §§ 1, 2.
The 1989 Sentencing Reform Act requires the trial judge to "determine
the appropriate range of sentence." Tenn. Code Ann. § 40-35-210(a). The range
determination is an important factor in determining release eligibility. See Tenn.
Code Ann. § 40-35-501. The petitioner argues that because the trial court was
required by statute to determine the applicable range, an impermissible invasion of
the "province of the executive branch" had taken place. The petitioner contends
that the legislative branch has delegated to the executive branch the exclusive
power to calculate initial parole eligibility dates. See Tenn. Code Ann. §§ 40-28-101
through -125.
Our supreme court has held that "[t]heoretically, the legislative power
is the authority to make, order, and repeal[;] the executive, that to administer and
enforce[;] and the judicial, that to interpret and apply, laws." Richardson v. Young,
125 S.W. 664, 668 (Tenn. 1910) (quoted with approval in Underwood v. State, 529
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S.W.2d 45, 47 (Tenn. 1975)). Our court has recently acknowledged that the
"authority to grant paroles is not judicial in nature but is administrative." Davis, slip
op. at 3 (citing Woods v. State, 169 S.W. 558 (Tenn. 1914)). Nevertheless, our
supreme court has observed, "it is impossible to preserve perfectly the theoretical
lines of demarcation between the [three] branches of government." Underwood,
529 S.W.2d at 47. "There is necessarily a certain amount of overlapping. The three
departments are interdependent." Id.
In Davis, our court rejected an argument identical to that of the
petitioner, ruling "that a trial court's determination of sentencing range does not
infringe upon the powers of the executive branch." Slip op. at 3. See also Steve L.
Bryant v. State, No. 01C01-9605-CR-00190, slip op. at 3 (Tenn. Crim. App., at
Nashville, April 24, 1997). That ruling would control in these circumstances.
The petitioner has next alleged that the 1989 Sentencing Act violates
the determinate sentencing law. He asserts that the sentencing ranges along with
release eligibility percentages establish indeterminate sentences in violation of
Tenn. Code Ann. § 40-35-211, an enactment which requires courts to "impose a
specific sentence length for each offense. ... There are no indeterminate
sentences."
Parole, however, does not terminate a prisoner's sentence. See
Howell v. State, 569 S.W.2d 428, 432 (Tenn. 1978). While the prisoner is released
from confinement, the sentence continues and the parolee "is still in the custody of
the penal authorities of the State." Doyle v. Hampton, 340 S.W.2d 891, 893 (Tenn.
1960). Parole does not cause the sentence to expire or terminate. Id. Thus, the
possibility of parole does not render a sentence indeterminate. Range
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classifications and release eligibility determinations do not create the possibility of
indeterminate sentences. See also Bryant, slip op. at 4 (ruling that "[p]arole does
not cause a sentence to expire or terminate but is a conditional release from more
restrictive confinement").
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
David H. Welles, Judge
_______________________________
Curwood Witt, Judge
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