The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
DONALD ESLICK, ET AL. v. DONAL CAMPBELL, ET AL.
Direct Appeal from the Chancery Court for Davidson County
No. 98-441-III Ellen Hobbs Lyle, Chancellor
No. M1998-00944-COA-R3-CV - Decided June 27, 2000
This is an appeal of right by two state prisoners from a decree of the Chancery Court of Davidson
County dismissing their petition for declaratory judgment concerning the applicability to them of
mandatory parole provisions of Tennessee Code Annotated section 40-28-117(b). The trial court
dismissed their petitions finding that the mandatory parole provisions of Tennessee Code Annotated
section 40-28-117 were impliedly repealed by the 1982 Criminal Sentencing Reform Act. We affirm
the trial court on other grounds.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed and Remanded
CAIN , J., delivered the opinion of the court, in which CANTRELL, P.J., M.S., and KOCH , J., joined.
Donald Eslick and Robert Rappuhn, Nashville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela
S. Lorch, Assistant Attorney General, for the appellees, Donal Campbell, et al.
OPINION
Petitioners Eslick and Rappuhn were both convicted of aggravated kidnaping on April 30,
1982, and both were sentenced to twenty-five year determinate sentences.
Petitioner Eslick escaped in January 1989 and was sentenced to an additional three year term
for the escape and a second three year term for committing burglary while on escape. His sentences
for the escape and for the burglary were ordered to run consecutively to his twenty-five year sentence
for aggravated kidnaping and consecutive to each other resulting in a combined sentence of thirty-
one years.
Mr. Rappuhn escaped in 1992 and was recaptured in 1993. He was charged with escape but
at the time of the dismissal of the petition for declaratory judgment in these cases, July 29, 1998, the
record shows no disposition of the escape charge against Mr. Rappuhn.
On February 12, 1998, after pursuing administrative remedy with the Department of
Correction, Eslick and Rappuhn filed their petition for a declaratory judgment pursuant to Tenn.
Code Ann. §§ 4-5-101 and 224 (1998). In their petition Eslick and Rappuhn sought application of
the mandatory parole provisions of Tenn. Code Ann. §40-28-117(2)(1982 Repl.) to their kidnapping
sentences.
In its order of dismissal, the trial court held in part: “The court grants the motion to dismiss
because the court determines that mandatory parole was abolished by the 1982 Criminal Sentencing
Reform Act and that it does not apply to felons convicted after the effective date of the act, May 26,
1983. Tenn. Code Ann. § 40-43-503 (Supp. 1983).”
The difficulty with this holding is that both petitioners were convicted for aggravated
kidnaping more than a year prior to the Sentencing Reform Act of 1982. Although, the mandatory
parole provisions of Tennessee Code Annotated section 40-28-117 were in existence at the time of
the aggravated kidnaping convictions of April 30, 1982, the question before the court is whether that
statute applied to the April 30, 1982 convictions for aggravated kidnaping and the resulting twenty-
five year determinate sentences.
At the time both petitioners were convicted, aggravated kidnaping was a Class X felony and
subject to the provisions of then Tennessee Code Annotated section 39-1-703. This section provided
in pertinent part that Class X felony sentences would “. . . not be subject to reduction for good, honor
or incentive or other sentence credit of any sort” and that their sentences would “ . . . (3) terminate
or expire only after service of the entire sentence, day for day, under the control and supervision of
the State of Tennessee; . . . ”
The Class X felony statutes had been enacted by Chapter 318 of the Public Acts of 1979.
Section 20 of the Act, which was then codified as section 40-28-301 Tennessee Code Annotated,
provided in part:
(a) Notwithstanding any provision of the Tennessee Code Annotated to the contrary,
the service of sentence, release eligibility and supervision while on release of a
person convicted of a Class X felony shall be governed exclusively by the provisions
of this section.
...
(d) Except for a life sentence, a person convicted of a Class X felony shall be eligible
for consideration for release classification status only after serving forty percent
(40%) of the sentence actually imposed by the sentencing court. The term ‘forty
percent (40%)’ as used in this subsection shall be an actual forty percent (40%) of the
full sentence imposed undiminished by sentence credits for good, honor or incentive
time of any sort.
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Tenn. Code Ann. §40-28-301(1982 Repl.).
Mandatory parole had been created by Chapter 624 of the Public Acts of 1974 and codified
in pertinent part as Tennessee Code Annotated section 40-28-117(b) providing:
(b) Every prisoner who has never been granted a parole by the board on a particular
sentence of imprisonment shall be granted a mandatory parole by the board subject
to the following restrictions:
...
(2) Prisoners serving a determinate or indeterminate sentence with a maximum term
of over ten (10) years as fixed by the court, shall be paroled by the board six (6)
months prior to the completion of the maximum term of sentence less credit for good
and honor time and incentive time.
Well settled rules of statutory construction in Tennessee provide:
A basic principle of statutory construction is to ascertain and give effect to
legislative intent without unduly restricting or expanding a statute’s coverage beyond
its intended scope. Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). This means
examining the language of a statute and applying its ordinary and plain meaning. Id.
Moreover, we must presume that the Legislature knows of its prior enactments and
knows of the existing state of the law at the time it passes legislation. Wilson v.
Johnson County, 879 S.W.2d 807, 810 (Tenn.1994).
Riggs v. Burson, 941 S.W.2d 44, 54 (Tenn.1997).
Mandatory parole had been in effect since 1974 when the General Assembly passed the Class
X felony statutes. The legislature is thus presumed to have been well aware of the provisions of
what is now codified as Tennessee Code Annotated section 40-28-117(b)(2) when it enacted the
Class X felony statutes five years later, providing that: “Notwithstanding any provision of the
Tennessee Code Annotated to the contrary, . . .” service of sentence, release eligibility and
supervision of Class X felons would be governed exclusively by the provisions of the Class X felony
law. See Tenn. Code Ann. § 40-28-301 (1982 Repl.). These provisions included the specific right
of Class X felons sentenced to less than a life term to be “eligible for consideration . . . ” for release
classification after serving forty percent of their full sentence imposed, undiminished by sentence
credits for good, honor or incentive time of any sort. Tenn. Code Ann. § 40-28-301(d).
The Criminal Sentencing Reform Act of 1982 was enacted by the General Assembly in
Chapter 868 of the Public Acts of 1982. The Act was codified as Title 40, Part 35, Chapters 1-5 of
Tennessee Code Annotated. Tennessee Code Annotated § 40-35-112 in this codification of the
Criminal Sentencing Reform Act of 1982 provided in part: “For all persons who committed crimes
prior to July 1, 1982, the prior law shall apply and shall remain in full force and effect in every
respect, including but not limited to sentencing, parole and probation.”
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By Chapter 5 of the Public Acts of 1985 extraordinary session, the General Assembly enacted
the Comprehensive Correction Improvement Act of 1985, repealing in part the Criminal Sentencing
Reform Act of 1982 but providing, also in part:
Tennessee Code Annotated, Title 40, Chapter 28, Part 3, a portion of the Class X
Felonies Act of 1979, is amended by deleting that part in its entirety. Provided,
however, that the release and parole of any person convicted and sentenced as a Class
X offender for a crime committed before July 1, 1982, shall be governed by Section
40-35-501, et seq.
By Chapter 591 of the Public Acts of 1989, the General Assembly enacted the Criminal
Sentencing Reform Act of 1989. This Act repealed the “Criminal Sentencing Reform Act of 1982
but retained the same codification classification as Title 40, Chapter 35, Parts 1-5 Tennessee Code
Annotated. Section 40-35-117 of this codification of the Criminal Sentencing Reform Act of 1989
provides in part: “(c) For all persons who committed crimes prior to July 1, 1982, prior law shall
apply and remain in full force and effect in every respect, including, but not limited to, sentencing,
parole and probation.”
So it is that former Tennessee Code Annotated section 40-28-301(a) provided the exclusive
law on April 30, 1982, relative to calculating the petitioners’ sentence and release eligibility. For
their Class X felony sentences Tennessee Code Annotated section 39-1-703 provided Eslick and
Rappuhn no kind of sentence credits but rather mandated that their sentences would “ . . . (3)
terminate or expire only after service of the entire sentence, day for day, . . . ” and both the Criminal
Sentencing Reform Act of 1982 and the Criminal Sentencing Reform Act of 1989 provided for the
continued viability and applicability of the sentencing laws in effect on April 30, 1982. Neither
Eslick nor Rappuhn have ever been eligible for mandatory parole under the provisions of Tennessee
Code Annotated section 40-28-117(b).
We decline to address the question of whether or not the Sentencing Reform Act of 1982
impliedly repealed mandatory parole but rather for reasons stated herein affirm the Chancellor in the
dismissal of this action for declaratory judgment.
Costs of this cause are assessed equally against Eslick and Rappuhn.
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