JAMES E. COLLINS,                 )
                                  )    Davidson Chancery
      Plaintiff/Appellant,        )    No. 97-598-III
                                  )
VS.                               )
                                  )
TENNESSEE DEPARTMENT OF           )    Appeal No.
CORRECTION,                       )    01A01-9709-CH-00558
                                  )
      Defendant/Appellee.         )


                  IN THE COURT OF APPEALS OF TENNESSEE
                                                       FILED
                             AT NASHVILLE
                                                           July 1, 1998
      APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE    Cecil W. Crowson
                                              Appellate Court Clerk
              HONORABLE ELLEN HOBBS LYLE, CHANCELLOR



James E. Collins, #83465
R.M.S.I. Unit 6-A-226
7475 Cockrill Bend Road
Nashville, Tennessee 37209-1010
PRO SE/ PLAINTIFF/APPELLANT


John R. Miles, #013346
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
ATTORNEY FOR DEFENDANT /APPELLEE


                    MODIFIED, AFFIRMED AND REMANDED



                                  HENRY F. TODD
                                  PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
JAMES E. COLLINS,                            )
                                             )       Davidson Chancery
       Plaintiff/Appellant,                  )       No. 97-598-III
                                             )
VS.                                          )
                                             )
TENNESSEE DEPARTMENT OF                      )       Appeal No.
CORRECTION,                                  )       01A01-9709-CH-00558
                                             )
       Defendant/Appellee.                   )




                                     OPINION

       The captioned appellant is a prisoner in the punitive custody of the Tennessee

Department of Correction. On February 19, 1997, he filed in the Trial Court a petition for

declaratory judgment alleging that on November 16, 1996, he filed with the Department a

petition for a declaratory order correcting an erroneous entry showing two life sentences which

have been merged.



       The Department moved for summary judgment supported by affidavit of a Sentencing

Analyst of the Department stating:

                      3.        Mr. Collins is currently serving three
               concurrent life sentences based upon three felony convictions.

                       4.      Mr. Collins was convicted of First Degree
               Murder in Cocke Co. Circuit Case No. 3450. He was
               sentenced to life imprisonment for this offense upon a plea of
               guilty entered on April 24, 1978. A copy of the Judgment
               Order in this case is attached as Exhibit A.

                      5.     Mr. Collins was also charged with three
               offenses of Grand Larceny, Receiving Stolen Property and
               Concealing Stolen Property in Hamblen County Case No. 78-
               CR-371. A copy of the indictment in this case is attached as
               Exhibit B.

                       6.     Mr. Collins pled guilty to Grand Larceny in
               Hamblen Co. Case No. 78-CR-371 and was sentence to three
               years to be served concurrently with Hamblen Co. Case No.
               78-CR-381. A copy of the Judgment Order in this case is
               attached as Exhibit C. TDOC records indicate that Mr.
               Collins fully expired his sentence for Grand Larceny in
               Hamblen Co. Case No. 78-CR-371 on January 12, 1981.



                                            -2-
                           7.      Mr. Collins was also charged with the two
                  offenses of First Degree Murder and Armed Robbery in
                  Hamblen Co. Case No. 78-CR-381. A copy of the indictment
                  in this case is attached as Exhibit D.

                          8.     Mr. Collins pled guilty to both offenses for
                  which he was indicted in Hamblen Co. Case No. 78-CR-381
                  and received life imprisonment on these two convictions. A
                  copy of the Judgment Order in this case is attached as Exhibit
                  E and it makes no reference indicating that the two guilty
                  pleas are merged for purposes of sentencing.

                          9.     Because First Degree Murder and Armed
                  Robbery are separate offenses, TDOC records reflect that Mr.
                  Collins is serving a life sentence for each of the two guilty
                  pleas in Hamblen Co. Case No. 78-CR-381.

                         10.      TDOC records reflect that Mr. Collins’
                  sentences in Cocke Co. Circuit Case No. 3450 and in
                  Hamblen Co. Case No. 78-CR-381 are all concurrent with
                  each other, and the sentence effective date for all of these
                  offenses is recorded as January 12, 1978.

                         11.     Although TDOC records reflect that Mr.
                  Collins is serving three life sentences, because they are
                  concurrent, the sentence calculation is the same as if he were
                  only serving one life sentence.

                          12.    At the time of his convictions, Mr. Collins was
                  required to serve thirty full calendar years on a life sentence
                  before becoming eligible for parole. A life sentence has no
                  expiration date.

                          13.      In 1986, Mr. Collins signed a sentence credit
                  waiver under Tennessee Code Annotated § 41-21-236. This
                  allowed him to earn sentence reduction credits to bring his
                  release eligibility date closer to the present.

                           14.     Currently, Mr. Collins has reduced his release
                  eligibility date to January 23, 2002.


        Appellant filed his responsive affidavit which is composed entirely of argument except

that it states:

                          15)     Affiant states whether he is serving one (1),
                  two (2) of three (3) life sentences although if concurrent still
                  prejudices him due to it keeps him from obtaining a lower
                  security classification status when all other inmates enjoy this
                  same thing, it also prejudices him regarding his job
                  opportunities in that he will be denied such with an extra life
                  sentence on his record when it shouldn’t be there, and it also
                  prejudices him regarding a possible release from prison, due
                  to his present date of eligibility is not a for sure thing, and to
                  have extra sentences on your record when they shouldn’t be


                                                 -3-
              will reflect badly upon him when the board reviews him for
              possible release in the near future, anyone who is incarcerated
              does not want charges and sentences on his record that don’t
              belong there, if that was the case, why do our Court’s have
              dismissals of cases at times if they don’t prejudice you, why
              do we have an expungment statute? If they don’t hurt you,
              why shouldn’t we just pass a few charges around to people to
              have on their record regardless of what the Court stated, just
              for the heck of it? That would not be justice, thats the one
              thing I am attempting to seek at this time, is justice.


       The Trial Court entered summary judgment stating:

                      In sum, then, the petitioner disputes Ms. Whisman’s
              testimony that he is serving three life sentences; he contends
              he is serving just one. But what is critical in this case is what
              effect, if any, the dispute on characterizing the petition as
              serving one life sentence or three being served concurrently
              has on parole eligibility. Ms. Whitman establishes that it has
              no effect. The petitioner has failed to provide this Court with
              legal authority or genuine issues of material fact to counter
              Ms. Whisman’s testimony. The Court determines that the
              petitioner’s assertions in response to Ms. Whitman’s affidavit
              merely query her affidavit and are not sufficient to establish
              genuine issues of material fact.

                        It is therefore ORDERED that the respondent’s
               motion of summary judgment is granted. In that the petitioner
               has qualified to proceed as a pauper, the Court assesses only
               state litigation tax.


       A party moving for summary judgment must support the motion with admissible

evidence which, if uncontradicted, entitled that party to summary judgment as a matter of law.

TRCP Rule 56.



       When such a motion and evidence has been filed by the moving party, the opponent of

the motion must file evidence contradicting the evidence offered by the moving party. If the

opponent of the motion fails to respond as required by Rule 56.06, a summary judgment is

proper. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225.



       In the present case the appellant filed no evidence to contradict that offered by the

Department that the Department records conform to the judgments of the Trial Court’s.

Therefore, summary judgment was proper. This Court finds no grounds for waiver of costs.

                                              -4-
       The judgment of the Trial Court is modified to provide that all costs accured in the Trial

Court shall be paid by the petitioner. As modified, the judgment of the Trial Court is affirmed.

Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court

for further appropriate proceedings.



                      MODIFIED, AFFIRMED AND REMANDED.



                                                     _________________________________
                                                     HENRY F. TODD
                                                     PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WILLIAM C. KOCH, JR., JUDGE




                                              -5-
