IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1997 April 24, 1997
Cecil W. Crowson
WILLIAM LEE TOLLETT, ) Appellate Court Clerk
C.C.A. NO. 01C01-9605-CR-00180
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Habeas Corpus)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
DEANNA C. BELL CHARLES W. BURSON
211 T hird Aven ue, No rth Attorney General and Reporter
Nashville, TN 37201
DARYL J. BRAND
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
JON SEABORG
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37209-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appe llate
Procedure. The Defendant filed a petition seeking habeas corpus relief on the
grounds that Tennessee’s sentencing law s violate the separa tion of powers
clause of the Tenn essee C onstitution and tha t the sentence s authorized a re
indeterm inate in nature and thus contrary to law. The trial court denied habeas
corpus relief. W e affirm the judgm ent of the tria l court.
The petition for writ of habeas corpus alleges that the Defe ndan t is in the
custody of the Tennessee Department of Correction as a result of being
convicted of first degree murder and assault on May 19, 1995, in the C ircuit Court
of Williamson County, Tennessee. The petition alleges that the Defendant
received a sentence of life plus fifteen years.
W e first note that a p etition fo r writ of hab eas c orpus mus t conta in a copy
of the “legal process” u pon which re straint is based, or a satisfactory reason for
its absence. Tenn. Code Ann. § 29-21-107(b)(2). The petition in this case
contains neither. This omission alone would warrant the trial court’s dismissal of
the petition. State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (T enn. 1965 ).
In a habeas corpus proceeding, the burden of showing the invalidity of the
judgment of conviction is upon the petitioner, “and in the absence of a production
of the judgment, or a copy thereof, we must presume it was and is valid in a ll
respec ts.” State ex re l. George v. Bomar, 390 S.W .2d 232, 234 (Tenn. 196 5).
It is the Appellant’s obligation to have pre pared a n adeq uate rec ord in ord er to
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allow meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v. Banes, 874
S.W.2d 73, 82 (Te nn. Crim . App. 19 93). The trial court did not err when it denied
habea s corpu s relief.
On appeal, the Defendant argues that our statutory scheme of sentencing
violates the sep aration o f powers clause o f the State Constitu tion. See Tenn.
Cons t. art. II, §§ 1 & 2. In sentencing a defendant, the trial judge must first
determine the appropriate sentencing range which determines the release
eligibility percentage. The Defendant argues that this judicial function
encroaches upon the power of the executive branch to determine an inmate’s
parole eligibility. The De fendant therefo re argues that we should strike down our
entire sentencing code. We reject the Defendant’s argument because we
conclude that it has no merit. Some functions of the three departm ents of sta te
government are nec essarily ove rlapping a nd interd epend ent. We believe this is
particu larly true in our criminal justice system . See Lavon v. S tate, 586 S.W.2d
112, 115 (T enn. 19 79); Unde rwood v . State, 529 S.W .2d 45, 47 (T enn. 1975 );
Woods v. State, 130 Tenn . 100, 169 S.W. 558 (1914). Accordingly, we do not
believe the judicial function of setting sentencing ranges is an unconstitutional
encroachment on the powers of the excecutive branch.
The Defendant further argues that the sentencing ranges along with the
release eligibility percentages establish indeterminate sentences in violation of
Tennessee Code Annotated section 40-35-211, which prohibits indetermin ate
sentences. We also reject this argument because we conclude that it has no
merit. The fact that the Board of Paroles may grant or deny parole does not
convert a determ inate sen tence into an indete rminate senten ce. Parole does not
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cause a sentence to expire or terminate bu t is a conditional release from mo re
restrictive confinem ent. See Howe ll v. State; 569 S.W.2d 428, 433 (T enn. 1978 );
Doyle v. Hampton, 207 Tenn. 399, 403, 340 S.W.2d 891, 893 (19 60). A parolee
remains in constru ctive custo dy until the expiration of the full term of his or her
senten ce. How ell, 569 S.W.2d at 433.
The writ of habeas corpus, codified at Tennessee Code Annotated sections
29-21-101 to-130, is to be issued only in the case of a void judgment or to free
a prisoner held after the term of imprisonment has expired. Tenn. Code Ann. §
29-21-101; Archer v. State, 851 S.W .2d 157 , 164 (T enn. 19 93); Flowers v.
Traughber, 910 S.W.2d 468, 469 (Tenn. Crim. App. 1995). The sole relief
availab le und er Te nnes see’s habe as co rpus s tatute is discharge from custod y.
Taylor v. Morgan, 909 S.W.2d 17, 20 (Te nn. Crim . App. 19 95). For the reasons
stated in this opinion, we cannot conclude that the trial judge erred by denying
the Defendant’s request that he be released. Therefore, we conclude that the
petition for writ of habeas corpus was properly dismissed.1
The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
1
This co urt has n ot been r eceptive to similar c hallenge s to our s entenc ing laws. See Frank Bell v.
Ricky Bell, Warden, C.C.A. N o. 01-C -01-960 2-CR -00058 , Davidso n Cou nty (Tenn . Crim. A pp.,
Nash ville, Jan. 30, 19 97); Eric C. P endleton v. State , C.C.A. No. 01-C-01-9604-CR-00158,
Davids on Co unty (Ten n. Crim . App., Na shville, Feb . 12, 1997 ); Joe T hom as Bak er, Jr. v. State ,
C.C.A. No. 01C01-9604-CR-00129, Davidson County (Tenn. Crim. App., Nashville, Feb. 20,
1997); Terry M errell v. State , C.C .A. N o. 01 C01 -960 4-C R-0 014 7, Da vidso n Co unty (T enn . Crim .
App., Nashville, Feb. 20, 1997).
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CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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