The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1997 April 24, 1997
Cecil W. Crowson
STEVE L. BRYANT, ) Appellate Court Clerk
C.C.A. NO. 01C01-9605-CR-00190
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
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:
PARRISH B. STANTON CHARLES W. BURSON
209 T enth Av enue S outh Attorney General and Reporter
Nashville, TN 37203
LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
KATRIN N. MILLER
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 burglary and larceny on Ja nuary 19, 19 89, in the Criminal Court of
Davidson County, Tennessee. The petition alleges that the Defendant received
a sente nce of eig hteen ye ars to be served a t thirty-five perce nt (35% ).
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.1 W e 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
1
Because the D efendant was convicted in 1989 , he was sentenced un der the Sentencing Reform
Act of 1982. Therefore, his challenge would actually be to the 1982 Act. This distinction is not
material to our analysis of the issues.
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merit. The fact that the Board of Paroles may grant or deny parole does not
convert a determinate sentence into an indeterminate sentence. Parole does not
cause a senten ce to exp ire or term inate but is a con ditional release from more
restrictive confinem ent. See Howell v. State; 569 S.W .2d 428, 433 (Tenn. 197 8);
Doyle v. Hampton, 207 Tenn. 399, 403, 340 S.W.2d 891, 893 (1960). A parolee
remains in con structive custo dy until the exp iration 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
available under Tennessee’s habeas corpus statute is discharge from custody.
Taylor v. Morgan, 909 S.W .2d 17, 20 (Tenn . Crim. A pp. 199 5). 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.2
The judgment of the trial court is affirmed.
2
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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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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