IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY SESSION, 1997 FILED July 23, 1997
Cecil W. Crowson JEFFREY LYNN BUSH, ) Appellate Court Clerk ) No. 01C01-9605-CR-00204 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. J. RANDALL WYATT, JR., Judge STATE OF TENNESSEE, ) ) (Habeas Corpus) Appellee )
For the Appellant: For the Appellee:
SHAWN A. TIDWELL CHARLES W. BURSON Stanton, Tidwell & Mendes, PLLC Attorney General and Reporter Cummins Station, Suite 507 209 Tenth Avenue South DARYL J. BRAND Nashville, TN 37203 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III District Attorney General
KATRIN N. MILLER Asst. District Attorney General Washington Sq., Suite 500 222-2nd Ave. N. Nashville, Tn 37201-1649
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Jeffrey Lynn Bush, appeals the order of the Davidson
County Criminal Court dismissing his petition for writ of habeas corpus. In May
1994, the appellant was convicted in the Sumner County Criminal Court of
attempted first degree murder. Presently, the appellant is confined at the
Riverbend Maximum Security Institution in Davidson County, where he is serving
a fifteen-year sentence for this conviction. In August, 1995, the appellant filed a
petition for writ of habeas corpus. On November 21, 1995, the trial court entered
an order denying the appellant's petition.
On appeal, the appellant alleges that his sentence is void because:
I. his sentence is indeterminate and, thereby, violates Tenn. Code Ann. § 40-35-211 (1989); and
II. his sentence violates the separation of powers clause of the Tennessee Constitution.1
I. Indeterminate Sentences
The appellant first contends that the release eligibility provisions under
Tenn. Code Ann. § 40-35-501 (1989) create indeterminate sentences, which are
prohibited by Tenn. Code Ann. § 40-35-211.2 He bases this allegation on the
1 Th ese identical issues h ave previously been add ressed in other dec isions by this co urt. See, e.g., Ma sse ngill v. State , No. 01C01-9605-CR-00191 (Tenn. Crim. App. at Nashville, May 16, 1997 ); Stee le v. State, No. 01C01-9512-CC-00409 (Tenn. Crim. App. at Nashville, Apr. 30, 199 7); Bryan t v. State, No. 01C0 1-9605-C R-001 90 (Te nn. Crim . App. at Nashville, Apr. 24, 1997); Ch ilds v. Sta te, No. 01C 01-9 604 -CR -001 64 (T enn . Crim . App . at Na shville, Apr. 24 , 1997); To llett v. State. No. 01C 01-9 605 -CR -001 80 (T enn . Crim . App . at Na shville, Apr. 24 , 1997); Bak er v. State , No. 01C 01-9 604 -CR -001 29 (T enn . Crim . App . at Na shville, Feb. 2 0, 1997); Me rrell v. State, No. 01C01-9604-CR-00147 (Tenn. Crim. App. at Nashville, Feb. 20, 1997). In Massengill, No. 01C01-9605-CR-00191, this same panel reviewed issues identical to those sub judice with acc om pan ying indistinguishab le briefs .
2 Te nn. C ode Ann . § 40-35-211 provides, in pertine nt part:
"In fixing a sentence for a felony or misdemeanor, the court shall impose a specific sentence length for each offense.
(1) Specific senten ces for a fe lony shall be fo r a term of ye ars or m onths or life, if the defendant is sentenced to the department of correction . . . . There shall be
2 discretionary authority of the Board of Paroles to either grant or deny parole.
Thus, he argues, because the decision of the Board to grant or deny him parole
is uncertain, his sentence is indeterminate.
The fact that parole results in an inmate being released from confinement
does not result in terminating the original sentence imposed by the sentencing
court. Howell v. State, 569 S.W.2d 428, 433 (Tenn. 1978). Parole does not
cause the sentence to expire or terminate, but is merely a conditional release
from confinement. See Doyle v. Hampton, 340 S.W.2d 891, 893 (1960); see
also Merrell, No. 01C01-9604-CR-00147. The appellant confuses the terms
"sentence" and "parole." Indeed, even though released from confinement, the
defendant continues in constructive custody until the expiration of the full term of
his sentence. Howell, 569 S.W.2d at 433. Thus, the sentence imposed by the
sentencing court remains determinate. As the trial court concluded, "[t]he parole
board has no authority to determine the term of the sentence, but it does have
discretion in deciding how that sentence will be served." This issue is without
merit.
II. Separation of Powers
Next, the appellant alleges that Tenn. Code Ann. §40-35-601(1992) and
Tenn. Code Ann. § 40-35-211 (1989), establishing a parole system for eligible
inmates, violate the separation of powers clause of the Tennessee Constitution.
The appellant argues that the authority of the Board of Paroles to grant or deny
parole unconstitutionally encroaches upon the power of the judiciary to impose
sentences. Specifically, he argues that the legislature, by enacting Tenn. Code
Ann. § 40-35-601, usurped the judiciary's sentencing power and bestowed it
no ind eterm inate s ente nce s. Se nten ces for all felonies . . . shall be d eterm inate in natu re, an d the defe nda nt shall be respo nsible for the en tire senten ce. . . .
3 upon the Parole Board, a legislatively created entity.
The doctrine of separation of powers, as set forth in Article II of the
Tennessee Constitution, is a fundamental principal of American constitutional
government.3 Town of South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn.
1992) (citation omitted). Our constitution divides the powers of government into
three distinct, independent, and coordinate departments, namely, legislative,
executive, and judicial, with express prohibition against any encroachment by
one department upon the powers, functions, and prerogatives of the others,
except as directed or permitted by some other provision of the constitution.
Richardson v. Young, 122 Tenn. 471, 491, 125 S.W. 664, 668 (1910). While it is
the province and duty of the judicial department to interpret the law, it is equally
the exclusive province of the legislature to formulate polices, mandate programs,
and to establish their relative priority, and, once the legislature, exercising its
delegated powers, has decided the policy in a given area, it is for the executive
department to administer the laws and for the courts to enforce them when
enforcement is sought. Tennessee Valley Authority v. Hill, 437 U.S. 153, 194, 98
S.Ct. 2279, 2301-02 (1978); see also Richardson v. Young, 122 Tenn. at 493,
125 S.W. at 668.
The setting of punishment is a legislative function. See Lavon v. State,
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY SESSION, 1997 FILED July 23, 1997
Cecil W. Crowson JEFFREY LYNN BUSH, ) Appellate Court Clerk ) No. 01C01-9605-CR-00204 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. J. RANDALL WYATT, JR., Judge STATE OF TENNESSEE, ) ) (Habeas Corpus) Appellee )
For the Appellant: For the Appellee:
SHAWN A. TIDWELL CHARLES W. BURSON Stanton, Tidwell & Mendes, PLLC Attorney General and Reporter Cummins Station, Suite 507 209 Tenth Avenue South DARYL J. BRAND Nashville, TN 37203 Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III District Attorney General
KATRIN N. MILLER Asst. District Attorney General Washington Sq., Suite 500 222-2nd Ave. N. Nashville, Tn 37201-1649
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Jeffrey Lynn Bush, appeals the order of the Davidson
County Criminal Court dismissing his petition for writ of habeas corpus. In May
1994, the appellant was convicted in the Sumner County Criminal Court of
attempted first degree murder. Presently, the appellant is confined at the
Riverbend Maximum Security Institution in Davidson County, where he is serving
a fifteen-year sentence for this conviction. In August, 1995, the appellant filed a
petition for writ of habeas corpus. On November 21, 1995, the trial court entered
an order denying the appellant's petition.
On appeal, the appellant alleges that his sentence is void because:
I. his sentence is indeterminate and, thereby, violates Tenn. Code Ann. § 40-35-211 (1989); and
II. his sentence violates the separation of powers clause of the Tennessee Constitution.1
I. Indeterminate Sentences
The appellant first contends that the release eligibility provisions under
Tenn. Code Ann. § 40-35-501 (1989) create indeterminate sentences, which are
prohibited by Tenn. Code Ann. § 40-35-211.2 He bases this allegation on the
1 Th ese identical issues h ave previously been add ressed in other dec isions by this co urt. See, e.g., Ma sse ngill v. State , No. 01C01-9605-CR-00191 (Tenn. Crim. App. at Nashville, May 16, 1997 ); Stee le v. State, No. 01C01-9512-CC-00409 (Tenn. Crim. App. at Nashville, Apr. 30, 199 7); Bryan t v. State, No. 01C0 1-9605-C R-001 90 (Te nn. Crim . App. at Nashville, Apr. 24, 1997); Ch ilds v. Sta te, No. 01C 01-9 604 -CR -001 64 (T enn . Crim . App . at Na shville, Apr. 24 , 1997); To llett v. State. No. 01C 01-9 605 -CR -001 80 (T enn . Crim . App . at Na shville, Apr. 24 , 1997); Bak er v. State , No. 01C 01-9 604 -CR -001 29 (T enn . Crim . App . at Na shville, Feb. 2 0, 1997); Me rrell v. State, No. 01C01-9604-CR-00147 (Tenn. Crim. App. at Nashville, Feb. 20, 1997). In Massengill, No. 01C01-9605-CR-00191, this same panel reviewed issues identical to those sub judice with acc om pan ying indistinguishab le briefs .
2 Te nn. C ode Ann . § 40-35-211 provides, in pertine nt part:
"In fixing a sentence for a felony or misdemeanor, the court shall impose a specific sentence length for each offense.
(1) Specific senten ces for a fe lony shall be fo r a term of ye ars or m onths or life, if the defendant is sentenced to the department of correction . . . . There shall be
2 discretionary authority of the Board of Paroles to either grant or deny parole.
Thus, he argues, because the decision of the Board to grant or deny him parole
is uncertain, his sentence is indeterminate.
The fact that parole results in an inmate being released from confinement
does not result in terminating the original sentence imposed by the sentencing
court. Howell v. State, 569 S.W.2d 428, 433 (Tenn. 1978). Parole does not
cause the sentence to expire or terminate, but is merely a conditional release
from confinement. See Doyle v. Hampton, 340 S.W.2d 891, 893 (1960); see
also Merrell, No. 01C01-9604-CR-00147. The appellant confuses the terms
"sentence" and "parole." Indeed, even though released from confinement, the
defendant continues in constructive custody until the expiration of the full term of
his sentence. Howell, 569 S.W.2d at 433. Thus, the sentence imposed by the
sentencing court remains determinate. As the trial court concluded, "[t]he parole
board has no authority to determine the term of the sentence, but it does have
discretion in deciding how that sentence will be served." This issue is without
merit.
II. Separation of Powers
Next, the appellant alleges that Tenn. Code Ann. §40-35-601(1992) and
Tenn. Code Ann. § 40-35-211 (1989), establishing a parole system for eligible
inmates, violate the separation of powers clause of the Tennessee Constitution.
The appellant argues that the authority of the Board of Paroles to grant or deny
parole unconstitutionally encroaches upon the power of the judiciary to impose
sentences. Specifically, he argues that the legislature, by enacting Tenn. Code
Ann. § 40-35-601, usurped the judiciary's sentencing power and bestowed it
no ind eterm inate s ente nce s. Se nten ces for all felonies . . . shall be d eterm inate in natu re, an d the defe nda nt shall be respo nsible for the en tire senten ce. . . .
3 upon the Parole Board, a legislatively created entity.
The doctrine of separation of powers, as set forth in Article II of the
Tennessee Constitution, is a fundamental principal of American constitutional
government.3 Town of South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn.
1992) (citation omitted). Our constitution divides the powers of government into
three distinct, independent, and coordinate departments, namely, legislative,
executive, and judicial, with express prohibition against any encroachment by
one department upon the powers, functions, and prerogatives of the others,
except as directed or permitted by some other provision of the constitution.
Richardson v. Young, 122 Tenn. 471, 491, 125 S.W. 664, 668 (1910). While it is
the province and duty of the judicial department to interpret the law, it is equally
the exclusive province of the legislature to formulate polices, mandate programs,
and to establish their relative priority, and, once the legislature, exercising its
delegated powers, has decided the policy in a given area, it is for the executive
department to administer the laws and for the courts to enforce them when
enforcement is sought. Tennessee Valley Authority v. Hill, 437 U.S. 153, 194, 98
S.Ct. 2279, 2301-02 (1978); see also Richardson v. Young, 122 Tenn. at 493,
125 S.W. at 668.
The setting of punishment is a legislative function. See Lavon v. State,
586 S.W.2d 112 (Tenn. 1979); Sandford v. Pearson, 231 S.W.2d 336 (Tenn.
1950). Inherent within the legislature's function to establish punishment is its
authority to promulgate laws devising and establishing a statutory scheme of
parole. Also within the legislature's authority is the ability to create an
3 Article II of the Tennessee Constitution provides: Sec. 1. Division of Powers. -- The powers of the Government shall be divided into three distinc t departm ents: the Legislative, E xecutive, 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.
4 administrative agency to oversee and implement the expressed policy and
program of the statutes pertaining to parole. Cf. State v. Edwards, 572 S.W.2d
917, 919 (Tenn. 1978).
The authority to grant parole to eligible inmates rests with the Board of
Paroles, an agency of the executive branch. Tenn. Code Ann. § 40-28-103, -
106. As established by our legislature, the authority to grant paroles is not
judicial in nature, but is administrative. Woods v. State, 130 Tenn. 100, 114, 169
S.W. 558, 560 (1914). The administration of the parole system is neither purely
judicial, legislative, nor executive, but rather, belongs "to the great residuum of
governmental authority, the police power, to be made effective, as is often the
case, through administrative agencies." Id. As such, the laws regarding
sentencing and paroles do not unconstitutionally confer judicial powers upon
executive officers. This issue is without merit.
III. Conclusion
In Tennessee, habeas corpus relief is only available when a conviction is
void because the convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant's sentence has expired and he is
being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In
the present case, the appellant's allegations, even if true, would not render his
convictions void, but merely voidable. The appellant has failed to establish that
the sentencing court was without jurisdiction or authority to sentence the
appellant, nor is there any proof that his sentence has expired. Accordingly, we
conclude that the petition for a writ of habeas corpus was properly dismissed.
The judgment of the trial court is affirmed.
5 ____________________________________ DAVID G. HAYES, Judge
CONCUR:
_______________________________ GARY R. WADE, Judge
_______________________________ CURWOOD WITT, Judge