DAVID PALMER,                    )
                                 )
     Plaintiff/Appellant,        )    Appeal No.
                                 )    01-A-01-9712-CH-00731
v.                               )
                                 )    Davidson Chancery
TENNESSEE DEPARTMENT             )    No. 97-2591-I
OF CORRECTION,                   )
                                 )          FILED
     Defendant/Appellee.         )
                                 )         December 16, 1998

                                           Cecil W. Crowson
                                          Appellate Court Clerk
                 COURT OF APPEALS OF TENNESSEE


 APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

                     AT NASHVILLE, TENNESSEE


     THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




DAVID PALMER, Pro Se
#116977 NECX POB 5000
Mountain City, Tennessee 37683


JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

SOHNIA W. HONG
Assistant Attorney General
Civil Rights and Claims Division
Second Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, Tennessee 37243
      ATTORNEYS FOR DEFENDANT/APPELLEE




                     AFFIRMED AND REMANDED

                                       WILLIAM B. CAIN, JUDGE
                                OPINION
          This appeal involves a state prisoner's efforts to obtain judicial review
of a decision of the Tennessee Department of Correction. After the Department
denied the prisoner the relief that he sought in his Petition for Declaratory Order,
the prisoner filed a pro se "Petition for Judicial Review and/or Petition for a
Declaratory Judgment and/or Petition for Common-law Writ of Certiorari" in the
Chancery Court of Davidson County. The trial court granted the Department's
motion to dismiss pursuant to Rule 12.02(6) of Civil Procedure. We affirm the
dismissal of the prisoner's petition because it fails to state a claim upon which
relief can be granted.


                                         I.


          David Palmer is incarcerated in the Northeast Correctional Center
where he was ordered to serve a forty-year sentence for the offense of aggravated
rape, a three-year sentence for the offense of joyriding, and a one-year sentence
for the offense of petit larceny. All three offenses were committed in 1986 and
Mr. Palmer began serving his time for these offenses on September 11, 1986. In
August of 1997, Mr. Palmer began this proceedings by filing a Petition for
Declaratory Order with the Tennessee Department of Correction.


                                        II.


          In his Petition for Declaratory Order, Mr. Palmer challenged the
sentence he now serves on two grounds only one of which he has raised on
appeal. The issue on appeal involves the criminal savings statute Section 39-1-
105 of the Tennessee Code and Article XI, § 8 of the Tennessee Constitution.
Our state constitution provides in pertinent part:
          The Legislature shall have no power to suspend any general
          law for the benefit of any particular individual, nor to pass
          any law for the benefit of individuals inconsistent with the
          general laws of the land; nor to pass any law granting to any
          individual or individuals, rights, privileges, immunities, or
          exemptions other than such as may be, by the same law
          extended to any member of the community, who may be able

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          to bring himself within the provisions of such law.

Tenn. Const. art. XI, § 8.


          The criminal saving statute was repealed in November of 1989 and
reenacted with nearly identical language as follows:
          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. 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.

Tenn. Code Ann. § 39-11-112 (1997).


          At the time of Mr. Palmer's offense, aggravated rape was a Class X
felony pursuant to Tennessee Code Annotated section 39-1-701 (1982)
(repealed). However the law was changed by the Criminal Sentencing Reform
Act of 1989 such that aggravated rape is now a Class A felony. Tenn. Code
Ann.§ 39-13-502 (1997).       Mr. Palmer claims that under the 1989 Act, the
maximum sentence he could receive for aggravated rape is twenty years at 45%.
See Tenn. Code Ann. § 40-35-112 (1997), § 40-35-501 (Supp. 1998). In his
petition for a declaratory order, it was Mr. Palmer's position that, since he had
already served eleven years and since he had six and a half years in sentence
credits, he is entitled to immediate release if sentenced under the 1989 Act.


          Mr. Palmer maintains that the criminal savings statute mandates this
downward adjustment to his sentence which entitles him to immediate release.
In dismissing Mr. Palmer's action, the trial court held that the criminal savings
statute did not apply to sentences which were already received when a
subsequent act or amendment provided for a lesser penalty. We agree. As the
Court of Criminal Appeals has stated, "The criminal savings statute has never
been interpreted to apply to convictions and sentences which were already
received when a subsequent act or amendment provided for a lesser penalty. By


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their terms, the former and present savings statutes relate to active prosecutions,
not past cases for which sentences are being served." State ex rel. Stewart v.
McWherter, 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992), perm. to appeal
denied, (Tenn. 1993).


          The court in Stewart also addressed the equal protection challenge of
Article XI, § 8 raised by Mr. Palmer which is that he was not treated equally to
identical offenders in his class who were sentenced after the 1989 law became
effective. The Stewart court noted that a primary purpose of the legislature in
enacting the 1989 Sentencing Act was to fight overcrowding in the prison system
by creating new sentencing standards. By limiting the Act in application to
persons not previously sentenced, the legislature devised a "partial solution to
prison overcrowding while avoiding the reopening of cases in which persons had
been validly sentenced previously." Id. at 877. The court concluded that the
1989 Act survived equal protection scrutiny because the purposes for
distinguishing between prisoners sentenced under the Act and those sentenced
under prior law satisfy a compelling state interest:
          [T]here is a legitimate state interest at stake in not allowing
          the reopening of a virtual pandora's box of all cases
          involving sentences imposed before November 1, 1989, but
          which are presently being served by confinement, parole, or
          probation.

          Society has a strong interest in preserving the finality of
          criminal litigation resulting in a conviction and sentence
          which were valid at the time of their imposition. The
          wholesale unsettling of final judgments of conviction and
          sentence which would occur if the 1989 Act were applicable
          as petitioner claims is a price the legislature was justified in
          not paying when it provided that the Act would not apply to
          previously sentenced offenders....Society is not required to
          undergo such a disruption of its criminal justice system.

Id. at 877 (quoting State ex rel. Crum v. McWherter, No. 02C01-9108-CC-
00181, 1992 WL 99029 (Tenn. Crim. App.1992), perm. to appeal denied,
(Tenn.1992)).


          Mr. Palmer argues that Stewart v. McWherter contradicts Tennessee's
legislative history with respect to the 1989 Act. For, he contends that if a


                                        -4-
primary purpose of the 1989 Act was to address the pressing issues of prison
overcrowding, then the state should not oppose the reduction of his sentence
which would only effectuate this purpose. However, the intent of the legislature
is certainly achieved by applying the statute to all sentences imposed after
November 1, 1989. The only question is whether or not it is constitutionally
permissible to not apply the 1989 Act to persons previously sentenced. As
outlined above, Stewart v. McWherter has answered this question.


          The trial court granted the Department of Correction's motion to
dismiss pursuant to Rule 12.02 of the Tennessee Rules of Civil Procedure. A
rule 12.02 motion admits the truth of all relevant and material averments
contained in a complaint, but asserts that such facts do not constitute a cause of
action. Once a trial court's grant of a 12.02(6) motion has been appealed, the
appellate court must "take all allegations of fact in the plaintiff's complaint as
true, and review the lower courts' legal conclusions de novo with no presumption
of correctness." Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)
(citing Tenn. R. App. P. 13(d) and Owens v. Truckstops of America, 915 S.W.2d
420, 424 (Tenn.1996)). In light of the clear holding in Stewart v. McWherter,
Mr. Palmer's petition fails to state a cause of action.


                                        III.


          We hold that neither the criminal savings statute nor the Tennessee
Constitution mandate that the 1989 Sentencing Act be retroactively applied to
Mr. Palmer's 1986 sentence. We therefore affirm the trial court's dismissal of
this case. The costs of this appeal should be taxed to Mr. Palmer.




________________________________
                                               WILLIAM B. CAIN, JUDGE


CONCUR:

______________________________________


                                        -5-
BEN H. CANTRELL, PRES. JUDGE, M.S.


______________________________________
PATRICIA J. COTTRELL, JUDGE




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