IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1997 SESSION
August 15, 1997
Cecil W. Crowson
KIM LAMAR WITT, * Appellate Court Clerk
C.C.A. # 01C01-9606-CR-00274
Appellant, * DAVIDSON COUNTY
VS. * Hon. J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
Robert J. Mendes Charles W. Burson
209 Tenth Avenue South Attorney General & Reporter
Cummins Station, Suite 507 450 James Robertson Parkway
Nashville, TN 37203 Nashville, TN 37243
Karen M. Yacuzzo
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
Katrin Novak 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
The petitioner, Kim Lamar Witt, appeals the trial court's denial of his
petition for writ of habeas corpus. In 1987, the petitioner was convicted of armed
robbery and assault with the intent to commit first degree murder; the trial court
imposed two concurrent, Range II sentences of life imprisonment. The petitioner
seeks habeas corpus relief on two different grounds:
(1) the 1989 Sentencing Reform Act and its
predecessors violate the Separation of Powers Clause of
the Tennessee Constitution; and
(2) the 1989 Sentencing Reform Act and its
predecessors violate the determinate sentencing law.
After an evidentiary hearing on the issues, 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).
This action does not allege that the Hamilton County court lacked
jurisdiction or that the petitioner's sentence has expired. Thus, the petitioner has
failed to state a claim for habeas corpus relief. See Monroe E. Davis v. Jimmy
Harrison, Warden, No. 02C01-9607-CC-00242, slip op. at 4 (Tenn. Crim. App., at
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Jackson, July 2, 1997) (holding these identical challenges to the 1989 Sentencing
Act do not state a claim for habeas corpus relief).
Nevertheless, we will address the merits of the arguments. First, the
petitioner argues the Sentencing Act1 violates the Separation of Powers Clause of
the Tennessee Constitution, which 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 1982 Sentencing Act requires the trial judge to "determine the
appropriate range of sentence." Tenn. Code Ann. § 40-35-210(a) (1982 repl.). The
range determination controls release eligibility. See Tenn. Code Ann. § 40-35-
501(c) (1982 repl.). The petitioner argues that because the trial court had to
determine the range, the trial court impermissibly "dictates to the executive when an
offender is first eligible for parole." He 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 (1982 repl.). We
must disagree.
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
1
The petitioner challenges the "Tennessee Sentencing Reform Act ... and its predecessor
statutes." W e lim it our discus sion to the 1 982 Act, the Ac t under which the petitioner was se nten ced .
W e note, however, that the 1989 Act contains provisions that are similar to the challenged portions of
the 1982 Act.
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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
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." Monroe E.
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).
The petitioner next argues that the 1982 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 (1982 repl.), which provides "[i]n fixing a sentence ..., the court shall
impose a specific sentence length for each offense. ... There shall be no
indeterminate sentences."
Parole 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.
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1960). Parole does not cause the sentence to expire or terminate. Id. Thus, the
possibility of parole does not cause a sentence to be indeterminate. Range
classifications and release eligibility determinations do not create the possibility of
indeterminate sentences. See also Steve L. 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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