                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs February 2002

   THOMAS DYER v. TENNESSEE DEPARTMENT OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                     No. 01-885-I   Irvin H. Kilcrease, Jr., Chancellor



                    No. M2001-01446-COA-R3-CV - Filed October 8, 2002


                    OPINION DENYING PETITION FOR REHEARING


BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.


       Thomas Dyer has filed a respectful and timely Petition to Rehear. He states that our opinion
mistakenly asserted that he failed to petition the Department for a Declaratory Order. Upon further
examination of the record, we are obligated to conclude that he is correct. The record shows that he
indeed filed a Petition for Declaratory Order, and that the petition was denied. Thus, we were
mistaken to conclude that we lacked jurisdiction to consider his Petition for a Declaratory Judgment
under the UAPA.

       However, our analysis of his case did not end with the question of jurisdiction. In our
opinion, we discussed the three constitutional questions he raised on appeal, and found that none of
them entitled him to the relief he sought. Two of those three questions (ex post facto concerns and
double jeopardy) were included in his Petition for Declaratory Order, and were rejected by the
Department on the basis of reasoning that was virtually identical to the reasoning we used in
reaching the same conclusions. Nothing in the Petition to Rehear gives us reason to change those
conclusions.

        We note that in the current petition, Mr. Dyer advances yet another constitutional argument:
that to order an extension of his release eligibility date through an administrative procedure rather
than through a judicial trial amounts to an unconstitutional bill of attainder. As we stated in our
opinion, the Criminal Sentencing Reform Act of 1982 provided that a prisoner’s release eligibility
date may be deferred at the discretion of the Commissioner. It thus appears that the possibility of
an administrative extension of Mr. Dyer’s RED was part of his original judicially-determined
sentence, and thus that there is no constitutional violation, so long as the extension does not result
in a sentence of greater duration than that imposed by the court.
The Petition to Rehear is denied.




                                    _________________________________________
                                    BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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