         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     July 18, 2000 Session

      WILLIAM ANDREW DIXON v. FLORA J. HOLLAND, WARDEN

                Direct Appeal from the Criminal Court for Davidson County
                             No. 2848    Seth Norman, Judge



                  No. M1999-02494-CCA-R3-PC - Filed November 17, 2000



William Andrew Dixon was convicted of kidnapping for ransom in violation of Tennessee Code
Annotated section 39-2603 in April 1981 in the Circuit Court of Dickson County. The offense was
committed in April 1978. Between the time of the offense in 1978, and the time of trial in 1981,
kidnapping for ransom was redesignated by the legislature as the offense of aggravated kidnapping;
the maximum punishment was reduced by the legislature from life imprisonment without parole to
life imprisonment with the possibility of parole. The Tennessee Department of Correction maintains
that it is incarcerating Petitioner under a sentence of life imprisonment without the possibility of
parole. Petitioner filed a Petition for Writ of Habeas Corpus in the Criminal Court of Davidson
County, asserting the judgment is illegal and void. The petition was denied. The judgment is
affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL , J., delivered the opinion of the court, in which NORMA MCGEE OGLE , J.,
joined. DAVID G. HAYES, J., filed a concurring opinion.

Thomas F. Bloom, Nashville, Tennessee, for the appellant, William Andrew Dixon.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Pamela Sue Anderson, Assistant District Attorney
General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        Following a jury trial in Dickson County Circuit Court in April, 1981, the Petitioner, William
Andrew Dixon, was convicted of kidnapping for ransom and felonious use and employment of a
firearm while committing kidnapping for ransom. The trial court’s judgment states that the jury
fixed punishment of life imprisonment for the kidnapping for ransom conviction; the judgment
further ordered that for the conviction of kidnapping for ransom the Petitioner “shall be imprisoned
for life in the Tennessee State Penitentiary.” A sentence of five (5) years for the firearm offense was
ordered to be served consecutively to the sentence of life imprisonment. Nowhere in the judgment,
which was filed April 25, 1981, is it mentioned that the life sentence is to be served without the
possibility of parole.

         In his Petition for Writ of Habeas Corpus, and on appeal, the Defendant asserts that he is
incarcerated serving a sentence of life imprisonment without the possibility of parole and that this
is an illegal and void sentence. He further argues that the maximum punishment to which he was
subjected upon his conviction was life imprisonment with the possibility of parole.

       The State responds that the trial court’s judgment setting Petitioner’s punishment at
imprisonment for life in the Tennessee State Penitentiary was an appropriate sentence for the
“sentencing structure in place at the time of trial.” The issue presented by Petitioner is properly
presented in a Petition for a Writ of Habeas Corpus. See Jonathan Stephenson v. Howard Carlton,
Warden, et al., No. E1998-00202-SC-R11-CD, Tenn. Sup. Court, for publication, filed September
21, 2000 at Knoxville, ___ S.W.3d ___, 2000 WL 1357517 at *1-2.

        The offenses occurred in Carroll County in April of 1978. Venue was changed upon a pre-
trial motion filed by Petitioner. At the time of the crimes, the offense of kidnapping for ransom was
set forth in Tennessee Code Annotated section 39-2603 (1975) as follows:

               39-2603. Kidnapping for ransom – Penalty – Any person who seizes,
       confines, inveigles, entices, decoys, abducts, conceals, kidnaps, or carries away any
       individual by any means whatsoever with intent to hold or detain, or who holds or
       detains, such individual for ransom, reward or to commit extortion or to exact from
       relatives or friends of such person any money, or valuable thing, or any person who
       kidnaps or carries away any individual to commit robbery, or any person who aids
       or abets any such act, is guilty of a felony and upon conviction thereof shall be
       punished by imprisonment in the state penitentiary for life or for a term of years not
       less than twenty (20), without possibility of parole, at the discretion of the jury trying
       the same. (Emphasis added).

       On direct appeal, State v. William Andrew Dixon, No. 11930, Dickson County (Tenn. Crim.
App., Nashville, April 13, 1982), Petitioner raised the issue that the jury had the discretion to
determine whether or not the sentence imposed was to be served without the possibility of parole.
This court, in addressing the issue in its opinion on the direct appeal, stated:

              We now consider whether one convicted of kidnapping for ransom may be
       considered for parole after becoming eligible pursuant to our general statutes
       authorizing parole . . . .




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               The [Petitioner] now construes the statute to mean that it was discretionary
       with the jury as to whether the sentence imposed was “without possibility of parole.”
       ...

               We interpret the statute as meaning that the length of the term of
       imprisonment may be life imprisonment or a term of not less than 20 years at the
       discretion of the jury, but that the term of imprisonment imposed by the jury is
       without possibility of parole as a matter of law.

       Id. at pp. 4-6. (Emphasis added).

         In 1979, after commission of the offenses for which Petitioner was convicted, but prior to
his trial and convictions in 1981, the offense of kidnapping for ransom was amended to constitute
an offense under the more comprehensive offense of aggravated kidnapping. Tenn. Code Ann.§ 39-
2603 (Supp. 1979). (In 1990, kidnapping for ransom became a Class A felony specified as especially
aggravated kidnapping. Tenn. Code Ann. § 39-13-305 (Supp. 1990). The maximum punishment
of this offense for a Range I standard offender is currently 25 years imprisonment, with service of
a minimum of 85% of that sentence. See Tenn. Code Ann. § § 40-35-112, -501(c) (1997 & Supp.
1999)).

        Moreover, effective September 1, 1979, Tennessee Code Annotated section 39-2603,
classified as aggravated kidnapping, became a part of the Class X felony legislation passed by the
General Assembly. Under this legislation, the General Assembly reduced the maximum punishment
for kidnapping for ransom from life imprisonment without parole to life imprisonment with the
possibility of parole. Tenn. Code Ann.§ 39-2603 (Supp. 1979). The specific legislation stated that
“a person convicted of aggravated kidnapping shall be punished by imprisonment in the state
penitentiary for life or for a term of not less than twenty (20) years.” Id.

       At the time of Petitioner’s trial in 1981, the relative savings statute, Tennessee Code
Annotated section 39-114 (1975) [later replaced by Tennessee Code Annotated section 39-1-105
(1982) and now codified at Tennessee Code Annotated section 39-11-112 (1997)] provided as
follows:

       Repealed or amended laws – Application in prosecution for offense.– Whenever
       any penal statute or penal legislative act of the state is repealed or amended by a
       subsequent legislative act, any offense, as defined by the statute or act being repealed
       or amended, committed while such statute or act was in full force and effect shall be
       prosecuted under the act or statute in effect at the time of the commission of the
       offense. In the event the subsequent act provides for a lesser penalty, any
       punishment imposed shall be in accordance with the subsequent act. [Acts 1968 ch.
       513, § 1] (emphasis added).




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        There can be no question that a sentence of “life imprisonment” (with the possibility of
parole) is a lesser penalty than a sentence of “life imprisonment without possibility of parole.”
Therefore, argues Petitioner, pursuant to the “savings statute,” Tennessee Code Annotated section
39-114 [now codified at § 39-11-112] and section 39-2603 (Supp. 1979), it was mandatory that
Petitioner be sentenced to life imprisonment, with the possibility of parole following his trial in
1981. In dismissing the Petition for Writ of Habeas Corpus, the trial court ruled that the savings
statute set forth presently in Tennessee Code Annotated section 39-11-112 did not reduce the
punishment for a crime committed prior to July 1, 1982. As presently provided, Tennessee Code
Annotated section 39-11-112 provides in pertinent part: “Except as provided under the provisions
of § 40-35-117, in the event the subsequent act provides for a lesser penalty, any punishment
imposed shall be in accordance with the subsequent act.” (Emphasis added). Tennessee Code
Annotated section 40-35-117(c) provides that “[f]or 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.” See 1989 Tenn. Pub. Acts ch. 591, §6.

        The pertinent language of Tennessee Code Annotated section 39-11-112 relied upon by the
trial court in the habeas corpus proceeding is “[e]xcept as provided in § 40-35-117.” However, this
language was added to the savings statute (Tennessee Code Annotated section 39-11-112 (Supp.
1989), formerly Tennessee Code Annotated section 39-114) effective November 1, 1989, subsequent
to Petitioner’s trial and conviction, and subsequent to this court’s affirmance of his conviction on
direct appeal in 1982. Thus, the trial court’s reliance upon the amended language of Tennessee Code
Annotated section 39-11-112 violates constitutional proscriptions against ex post facto laws. See
Miller v. State, 584 S.W.2d 758, 761 (Tenn. 1979) (enumerating five types of ex post facto laws);
State v. Pearson, 858 S.W.2d 879, 882 (Tenn. 1993).

        Nevertheless, a portion of the Class X Felonies Act, Tenn. Code Ann. §39-5404 (later § 39-1-
704), specifically precludes Petitioner from being entitled to relief in this case. That statute provides
as follows:

        All Persons who have committed crimes on or after September 1, 1979, shall be tried and
        sentenced under the Class X Felonies Act of 1979. All persons whose crimes occurred prior
        to September 1, 1979, but whose trials occur on or after September 1, 1979, shall be tried
        under the law as it was prior to September 1, 1979, and as to those defendants, the prior law
        shall remain in full force and effect. (emphasis added)

        Petitioner argues that since Tenn. Code Ann. § 39-5404 states that those who commit Class
X Felonies after September 1, 1979 must be “tried and sentenced” under the new Act, and that those
who commit crimes before September 1, 1979 (as Petitioner) are only to be “tried” under the old law,
then sentencing for Petitioner must be under the less severe Class X Felonies Act (life with parole
versus life without parole). We disagree. In 1979, prior to the Judge Sentencing Act of 1982,
[§§ Tenn. Code Ann. 40-35-101 et seq.] the jury tried and sentenced a defendant charged with
kidnapping for ransom (now aggravated kidnapping).


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        Despite the fact that the legislature referred to post-September 1, 1979 cases as being
“tried and sentenced” and to pre-September 1, 1979 cases as being “tried,” the legislature clearly
stated that as to those who committed crimes prior to September 1, 1979, the prior law shall
remain in full force and effect. We can interpret this to mean nothing except that all aspects of
the prior law (including sentencing) must remain in full force and effect.

       Accordingly, the judgment of the Davidson County Criminal Court is affirmed.




                                                     ____________________________________
                                                     THOMAS T. WOODALL, JUDGE




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                    July 18, 2000 Session

      WILLIAM ANDREW DIXON v. FLORA J. HOLLAND, WARDEN

                Direct Appeal from the Criminal Court for Davidson County
                             No. 2848    Seth Norman, Judge




                                No. M1999-02494-CCA-R3-PC




DAVID G. HAYES, J., concurring.




                                                5
        I join with the majority in concluding that the Defendant’s application for the writ of habeas
corpus is without merit. The majority’s rationale is clearly supported by case law. See generally
State v. Turner, 919 S.W.2d 346, 361 (Tenn. Crim. App. 1995) (accused who committed offense
prior to July 1, 1982 but sentenced after effective date of 1982 Act not entitled to be sentenced
pursuant to 1982 Act); State v. Harris, 678 S.W.2d 473, 476 (Tenn. Crim. App. 1984) (if crime
committed on or after July 1, 1982, then trial judge proper sentencing authority; if crime committed
prior to July 1, 1982, sentencing responsibility upon jury); State v. Carter, 669 S.W.2d 707, 708
(Tenn. Crim. App. 1984) (judge sentencing act only applicable to crimes committed on or after July
1, 1982). Moreover, the Sentencing Commission Comments to Tenn. Code Ann. § 40-35-117(c)
provide:

        Subsection (c) provides that crimes committed prior to July 1, 1982 must be tried and
        sentenced under the law as it existed prior to that date. Offenses that occurred prior
        to July 1, 1982, were treated under the very different indeterminate jury sentencing
        structure. Due to the radical change in sentencing procedures, the commission
        believed that it was appropriate to retain prior law as to those few cases left in that
        category.

For these reasons, I concur.

         As a postscript, it cannot be ignored that the Defendant in this case was convicted of the only
offense, i.e., kidnapping for ransom, under the 1975 Act that prohibited parole eligibility. See
generally Tenn. Code Ann. § 39-2603 (1975). Indeed, no other offense under the 1975 Act provided
for such a harsh penalty. A defendant convicted of first degree murder with a resulting sentence of
life imprisonment was eligible for parole after thirty years. See TENN. CODE ANN . § 40-3613 (1975)
(persons sentenced to term of sixty-five years or more, or life, eligible for parole after thirty years);
see, e.g., Miller v. State, 584 S.W.2d 758 (Tenn. 1979) (legally effective punishment for first-degree
murder for crime committed on April 7, 1976, was life imprisonment). Similarly, a habitual
offender, whose statutory punishment was life without the possibility of parole, became parole
eligible after thirty years. See TENN. CODE ANN . § 40-3613. Thus, it appears that the only offense
for which no parole was available under the 1975 Act was the crime of kidnapping for ransom.
Although the legislature reduced the punishment for this offense to life with parole less than one year
from the date of the commission of this crime and prior to the Defendant's sentencing, it remains
equally clear that no statutory authority nor statutory construction exists which would permit
imposition of the lesser sentence.

         To further compound the dilemma presented by the disparity of sentences in the two
sentencing acts, until 1998, the Defendant’s sentence was classified by the Department of Correction
as a life sentence with parole. The record reflects that in April of 1998 the Defendant had accrued
2,268 days of sentence credits before being advised that he was ineligible for parole. This appeal
appears to be the Defendant’s fifth challenge to his sentence. It must be emphasized that the repeal
of a criminal statute followed by the adoption of its replacement often results in disparate



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punishment. Such is the situation in this case. Despite apparent inequities, ours is not a court of
equitable jurisdiction from which relief may be granted.




                                             __________________________________________
                                             DAVID G. HAYES, JUDGE




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