                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs September 11, 2001

                  WALTER E. PRESTON v. W.G. LUTCHE, ET AL.

                     Appeal from the Chancery Court for Davidson County
                         No. 01-2008-II Carol McCoy, Chancellor



                    No. M2001-03153-COA-R3-CV - Filed January 9, 2003


Appellant filed, pro se, a Petition for Writ of Certiorari. He was convicted of a Class X felony in
1982 and now seeks to rescind his April 9, 1986 waiver executed pursuant to Tennessee Code
Annotated section 41-21-236. The trial court dismissed the Petition for failure of Appellant to
respond to an Order requiring him to submit a copy of his inmate trust account showing all activity
in the account for the six months immediately prior to the filing of the action. The trial court did not
abuse its discretion in dismissing the Petition on such basis. We hold, on the merits, that Appellant
is not entitled to the relief sought. We affirm the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., and
PATRICIA J. COTTRELL, J., joined.

Walter E. Preston, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor General and Pamela S.
Lorch, Assistant Attorney General, for the appellees, W.G. Lutche.

                                              OPINION

        Appellant, Walter E. Preston, was convicted in 1982 of armed robbery with a deadly weapon,
which was a Class X felony, and was sentenced to forty years in the Department of Corrections. On
April 9, 1986, he signed a waiver pursuant to Tennessee Code Annotated section 41-21-236 in order
to earn sentence reduction credits. Twelve years later, he sought to rescind his waiver and, upon
refusal of the Department of Corrections to allow him to do so, filed the present action.

       Appellant sought to prosecute his Petition as an indigent, and the trial court ordered him to
comply with Tennessee Code Annotated section 41-21-807(a) by filing a certified copy of his trust
fund account statement for the six month period immediately preceding the filing of the Petition.
Upon his failure to comply, the trial court dismissed his Petition. Appellant claims that such
dismissal was an abuse of discretion.

        The Tennessee legislature enacted legislation, codified in Chapter 41, Part 8 of the Tennessee
Code, effective May 8, 1996, that established requirements for indigent inmates who file claims in
state court. Effective April 11, 2001, the legislature amended section 41-21-807 of said legislation,
in pertinent part as follows:

             (a) An inmate seeking to bring a civil action or appeal a judgment in
             a civil action or proceeding without prepayment of fees or security
             therefor, in addition to filing the affidavit required by § 41-21-805,
             shall submit a certified copy of the trust fund account statement (or
             institutional equivalent) for the inmate for the six-month period
             immediately preceding the filing of the complaint or notice of appeal,
             obtained from the appropriate official of each facility at which the
             inmate is or was confined.
Tenn. Code Ann. §41-21-807(a)(Supp. 2001).

       Pursuant to this statutory requirement, the chancellor ordered Petitioner to file a certified
copy of his inmate trust fund account showing the fund’s transactional history for the six months
immediately preceding the filing of the Petition. The chancellor found that the document previously
submitted by Petitioner entitled Certification of Inmate Trust Fund Account Balance did not comply
with the requirements of section 41-21-807(a). The chancellor gave Petitioner forty-five days to
submit the trust fund account history. At the expiration of said time period, Petitioner had failed to
comply with the Order.

        Petitioner did not communicate any reason for his failure to comply with the Order of the
court. As the court gave Petitioner ample notice that it would dismiss the action if he did not comply
with its Order to produce a six month transactional history of his inmate trust account and Petitioner
failed to comply with the Order, the chancellor properly dismissed Petitioner’s case. See, Davis v.
Holland, 31 S.W.3d 574, 576 (Tenn. Ct. App. 2000) (trial court ordered inmate to submit
documentation in conformance with Tenn. Code Ann. §41-21-805).

        Rule 41.02 of the Tennessee Rules of Civil Procedure authorizes a court to dismiss a
plaintiff’s claim if the plaintiff fails to comply with the Rules of Civil Procedure or to comply with
any order of the court. Manufacturers Consol. Serv., Inc. v. Rodell, 42 S.W.3d 846, 864 (Tenn. Ct.
App. 2000). The appellate court reviews a decision to dismiss under an abuse of discretion standard.
Id. In this case, the chancellor did not abuse her discretion in dismissing the case. The chancellor
issued an Order and gave Petitioner forty-five days to comply with it. Petitioner made no apparent
effort to comply therewith. As Petitioner appeared to ignore the trial court’s Order and the
requirements of section 41-21-807(a) of the Code, the chancellor properly dismissed the case.




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       The Petition in this case shows on its face that it is without merit, and we choose to address
the question of law presented thereby.

       Petitioner asserted that the waiver he signed pursuant to Tennessee Code Annotated section
41-21-236 operated to his disadvantage by stripping him of eligibility for Incentive Sentence Credits
under former Tennessee Code Annotated section 41-21-228(b) (1982) and Prisoner Performance
Sentence Credits under former Tennessee Code Annotated section 41-21-230(c) (1982). Petitioner
made the same assertions made by the inmate, and rejected by this Court, in Mauldin v. Tennessee
Department of Corrections, No. 01A01-9801-CH-00014, 1999 WL 5084 (Tenn. Ct. App. Jan. 7,
1999) (perm. to appeal denied June 21, 1999). Petitioner is serving a forty year sentence following
conviction prior to July 1, 1983 of a Class X felony. He is simply not eligible for credits under
former Tennessee Code Annotated section 41-21-228(b)(1982) and former section 41-21-
230(c)(1982).

       In Mauldin, this Court held:

              Mr. Mauldin’s second issue involves his eligibility for various sentence
       reduction credits. The basic facts relevant to an analysis of his position are that his
       offense was committed on December 18, 1983, and that he was sentenced on
       November 4, 1985, as a Class X offender.

              Prior to July 1, 1983 those convicted of Class X felonies were not entitled to
       sentence reduction for good, honor, incentive or other sentence reduction credits of
       any sort. Tenn. Code Ann. §39-1-703(1982)[repealed]. In 1983, the General
       Assembly adopted Public Chapter 400, which became effective July 1, 1983. In
       pertinent part, Section 3 of Chapter 400 stated:

               Notwithstanding the provisions of this chapter to the contrary, a
               person convicted of a Class X felony shall be eligible to receive
               prisoner performance sentence credits as provided in Tenn.Code Ann.
               §41-21-230 to reduce the expiration date of such person’s sentence.
               The provisions of this subsection shall not affect the release
               classification eligibility date of Class X offenders.

         Tenn. Code Ann. §40-28-301(I)(1983 Supp.)[repealed].

               Since Appellant was convicted of a crime which was committed after the
       effective date of Chapter 400, he is eligible, as a Class X felon, for those credits
       available through Tenn. Code Ann. §41-21-230, as it was in effect at the time of
       Public Chapter 400's enactment. In 1985, the General Assembly repealed those
       provisions then codified at Tenn. Code Ann. §§41-21-212, - 214, - 228, - 229, and -
       230 and enacted Tennessee Code Ann. §41-21-236 (1997). 1985 Tenn. Pub. Acts ch.



                                                -3-
5 §§2 & 14. This provision allowed inmates convicted of Class X felonies to earn
sentence reduction credits as follows:

        Any person who committed a felony, including any Class X felony,
        prior to December 11, 1985 may become eligible for the sentence
        reduction credits authorized by this section by signing a written
        waiver waiving his right to serve his sentence under the law in effect
        at the time his crime was committed. However, sentence reduction
        credits authorized by this section may be awarded only for conduct
        and/or performance from and after the date a person becomes eligible
        under this section.

Tenn. Code Ann. §41-21-236(c)(3)(1990)(Emphasis added.).

     The Department’s position is that Appellant was entitled to earn Prisoner
Performance Sentence Credits, pursuant to Ch. 400, Tenn. Public Acts of 1983,
which credits could reduce the sentence expiration date, not the release classification
eligibility date. The Department also maintains that Appellant has been eligible to
earn Prisoner Sentence Reduction Credits, pursuant to Tenn.Code Ann. §41-21-
236(c)(3), from the time Appellant executed the waiver required by the statute, which
waiver occurred in 1992.

        Tenn. Code Ann. §41-21-236(g) specifically authorizes the Department to
continue the application of certain previously enacted sentence credit programs to any
inmates to whom they applied at the time of enactment and who do not sign the
written waivers provided for in §41-21-236(c).

        Thus, it appears that the Department’s position is that Appellant was eligible
to earn those sentence reduction credits defined and established in former §41-21-
230, pursuant to Tenn. Code Ann. §40-28-302(1983 Supp.)[repealed] from his
incarceration until he signed a §41-21-236(c) waiver in 1992. From that point,
Appellant was eligible to earn the credits available under Tenn. Code Ann. §41-21-
236. Thus, according to the Department, Appellant has been eligible for certain
sentence reduction credits since his incarceration, but for only one kind of credit at
any time.

        Appellant does not directly dispute the Department’s position, but appears to
argue that he is entitled to additional sentence reduction credits authorized by other
statutes and/or that he is entitled to cumulatively accrue all potential credits for which
he may have been eligible at any time. Appellant argues that he “was entitled to earn,
and should have received, the following sentence reduction credits at the same time
and retroactively, as a matter of law.” (Emphasis in original.) Petition for
Declaratory Order (T.R. 9).


                                           -4-
        Appellant’s claims regarding sentence credits are based upon questions of
law; he does not claim calculation error. Appellant argues that he is entitled to the
sentence credits provided in T.C.A. §§41-21-212, - 214, - 228, - 229, and - 230,
which Appellant asserts were in effect from his offense date (December 18, 1983)
until their repeal in 1985. Mr. Mauldin’s eligibility for sentence reduction credits
depends upon the language of the statutes creating, authorizing, or defining such
credits. Jones v. Reynolds, 1997 WL 367661, *3 (Tenn.App. July 2, 1997). A
review of the statutes relied upon by Appellant demonstrates that he was not eligible
for the sentence reduction credits established in any of the statutes he cites, except
for T.C.A. §41-21-230:

       1. Tenn. Code Ann. §41-21-212(1982) applies “only to those persons
       convicted of an offense committed before July 1, 1981 ...”;
       2. Tenn. Code Ann. §41-21-214(1982) applies “only to those persons
       convicted of an offense committed before July 1, 1981 ...”;
       3. Tenn. Code Ann. §41-21-229(1982), by its own terms, does “not
       apply to sentences imposed upon Class X offenders.”
       4. While Tenn. Code Ann. §41-21-228 did not by its own terms
       specifically exclude Class X offenders, the Class X Felony Act made
       those convicted of Class X felonies ineligible for sentence reduction
       credits of any kind. Tenn. Code Ann. §39-1-703(1982) [repealed].
       The 1983 act authorized eligibility of Class X felons to only those
       credits (prisoner performance sentence credits) established in Tenn.
       Code Ann. §41-21-230. Therefore, Appellant was never eligible for
       the credits established in Tenn. Code Ann. §41-21-228.

        With regard to his argument that he is eligible for those credits provided in
Tenn. Code Ann. §41-21-230(1982)[repealed], the Department agrees that he was
eligible for such credits until his 1992 waiver. Based upon the analysis set out above,
we agree.

        Appellant’s position that he is entitled to retroactive application of the
sentence reduction credits in Tenn. Code Ann. §§41-21-212, -214, -228, and -229
necessarily also fails since he was never eligible for those credits. His claim of
retroactive application of eligibility for the §41-21-230 credits is answered by the
Department’s position that he was eligible for such credits from the date of his
incarceration.

        To the extent Appellant’s claims can be construed as an argument that he is
entitled to both §§41-21-230 and 41-21-236 credits for any period of time,
Tenn.Code Ann. §41-21-236(c)(3), quoted above, clearly provides for election by the
prisoner of the one type of credit he prefers. See Jones v. Reynolds, 1997 WL
367661 (Tenn.App. July 2, 1997).


                                         -5-
Mauldin, 1999 WL 5084, at *3-5.

       As Petitioner was convicted prior to July 1, 1983, he has never been eligible for Tennessee
Code Annotated section 41-21-230 credits since Chapter 400 of The Public Acts of 1983 (from
which section 41-21-203 was codified) was only effective as to Class X felonies committed after July
1, 1983. As the nonapplicability of these former credit statutes appears, as a matter of law, to
foreclose the issues raised by the Petition; we dismiss the Petition on its merits.

        Judgment of the trial court is affirmed, and the case is remanded with costs assessed against
Petitioner.


                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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