            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                             APRIL 1997 SESSION
                                                          August 15, 1997

                                                      Cecil W. Crowson
KIM LAMAR WITT,                *                     Appellate Court Clerk
                                    C.C.A. # 01C01-9606-CR-00274

      Appellant,               *    DAVIDSON COUNTY

VS.                            *    Hon. J. Randall Wyatt, Jr., Judge

STATE OF TENNESSEE,            *    (Habeas Corpus)

      Appellee.                *



For Appellant:                      For Appellee:

Robert J. Mendes                    Charles W. Burson
209 Tenth Avenue South              Attorney General & Reporter
Cummins Station, Suite 507          450 James Robertson Parkway
Nashville, TN 37203                 Nashville, TN 37243

                                    Karen M. Yacuzzo
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    Katrin Novak Miller
                                    Assistant District Attorney General
                                    222 Second Avenue North
                                    Washington Square, Suite 500
                                    Nashville, TN 37201-1649


OPINION FILED:_______________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The petitioner, Kim Lamar Witt, appeals the trial court's denial of his

petition for writ of habeas corpus. In 1987, the petitioner was convicted of armed

robbery and assault with the intent to commit first degree murder; the trial court

imposed two concurrent, Range II sentences of life imprisonment. The petitioner

seeks habeas corpus relief on two different grounds:

              (1) the 1989 Sentencing Reform Act and its
              predecessors violate the Separation of Powers Clause of
              the Tennessee Constitution; and

              (2) the 1989 Sentencing Reform Act and its
              predecessors violate the determinate sentencing law.

After an evidentiary hearing on the issues, the trial court denied the petition. We

affirm.



              The habeas corpus remedy in this state is limited. The writ may be

granted only where a petitioner has established lack of jurisdiction for the order of

confinement or that he is otherwise entitled to immediate release because of the

expiration of his sentence. See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968);

State ex rel. Wade v. Norvell, 443 S.W.2d 839 (Tenn. Crim. App. 1969). Habeas

corpus relief is available in this state only when it appears on the face of the

judgment or the record that the trial court was without jurisdiction to convict or

sentence the defendant or that the sentence of imprisonment has otherwise expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,

62 (Tenn. 1992).



              This action does not allege that the Hamilton County court lacked

jurisdiction or that the petitioner's sentence has expired. Thus, the petitioner has

failed to state a claim for habeas corpus relief. See Monroe E. Davis v. Jimmy

Harrison, Warden, No. 02C01-9607-CC-00242, slip op. at 4 (Tenn. Crim. App., at

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Jackson, July 2, 1997) (holding these identical challenges to the 1989 Sentencing

Act do not state a claim for habeas corpus relief).



                 Nevertheless, we will address the merits of the arguments. First, the

petitioner argues the Sentencing Act1 violates the Separation of Powers Clause of

the Tennessee Constitution, which provides as follows:

                 Sec. 1. Division of powers.--The powers of the
                 Government shall be divided into three distinct
                 departments: the Legislative, Executive, 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.

Tenn. Const. art. II, §§ 1, 2.



                 The 1982 Sentencing Act requires the trial judge to "determine the

appropriate range of sentence." Tenn. Code Ann. § 40-35-210(a) (1982 repl.). The

range determination controls release eligibility. See Tenn. Code Ann. § 40-35-

501(c) (1982 repl.). The petitioner argues that because the trial court had to

determine the range, the trial court impermissibly "dictates to the executive when an

offender is first eligible for parole." He contends that the legislative branch has

delegated to the executive branch the exclusive power to calculate initial parole

eligibility dates. See Tenn. Code Ann. §§ 40-28-101 through -125 (1982 repl.). We

must disagree.



                 Our supreme court has held that "[t]heoretically, the legislative power

is the authority to make, order, and repeal[;] the executive, that to administer and


        1
          The petitioner challenges the "Tennessee Sentencing Reform Act ... and its predecessor
statutes." W e lim it our discus sion to the 1 982 Act, the Ac t under which the petitioner was se nten ced .
W e note, however, that the 1989 Act contains provisions that are similar to the challenged portions of
the 1982 Act.

                                                      3
enforce[;] and the judicial, that to interpret and apply, laws." Richardson v. Young,

125 S.W. 664, 668 (Tenn. 1910) (quoted with approval in Underwood v. State, 529

S.W.2d 45, 47 (Tenn. 1975)). Our court has recently acknowledged that the

"authority to grant paroles is not judicial in nature but is administrative." Monroe E.

Davis, slip op. at 3 (citing Woods v. State, 169 S.W. 558 (Tenn. 1914)).

Nevertheless, our supreme court has observed, "it is impossible to preserve

perfectly the theoretical lines of demarcation between the [three] branches of

government." Underwood, 529 S.W.2d at 47. "There is necessarily a certain

amount of overlapping. The three departments are interdependent." Id.



              In Davis, our court rejected an argument identical to that of the

petitioner, ruling "that a trial court's determination of sentencing range does not

infringe upon the powers of the executive branch." Slip op. at 3. See also Steve L.

Bryant v. State, No. 01C01-9605-CR-00190, slip op. at 3 (Tenn. Crim. App., at

Nashville, April 24, 1997).



              The petitioner next argues that the 1982 Act violates the determinate

sentencing law. He asserts that the sentencing ranges along with release eligibility

percentages establish indeterminate sentences in violation of Tenn. Code Ann. §

40-35-211 (1982 repl.), which provides "[i]n fixing a sentence ..., the court shall

impose a specific sentence length for each offense. ... There shall be no

indeterminate sentences."



              Parole does not terminate a prisoner's sentence. See Howell v. State,

569 S.W.2d 428, 432 (Tenn. 1978). While the prisoner is released from

confinement, the sentence continues and the parolee "is still in the custody of the

penal authorities of the State." Doyle v. Hampton, 340 S.W.2d 891, 893 (Tenn.


                                            4
1960). Parole does not cause the sentence to expire or terminate. Id. Thus, the

possibility of parole does not cause a sentence to be indeterminate. Range

classifications and release eligibility determinations do not create the possibility of

indeterminate sentences. See also Steve L. Bryant, slip op. at 4 (ruling that

"[p]arole does not cause a sentence to expire or terminate but is a conditional

release from more restrictive confinement").



              Accordingly, the judgment of the trial court is affirmed.



                                           __________________________________
                                           Gary R. Wade, Judge

CONCUR:



_______________________________
David H. Welles, Judge



_______________________________
Curwood Witt, Judge




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