            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         APRIL 1997 SESSION
                                                     September 30, 1997

                                                   Cecil W. Crowson
MARVIN GOODMAN,             *                     Appellate Court Clerk
                                 C.C.A. # 01C01-9607-CR-00286

      Appellant,            *    DAVIDSON COUNTY

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

STATE OF TENNESSEE,         *    (Habeas Corpus)

      Appellee.             *



For Appellant:                   For Appellee:

James G. King                    Charles W. Burson
222 Second Avenue                Attorney General & Reporter
Suite 416                        450 James Robertson Parkway
Nashville, TN 37201              Nashville, TN 37243

                                 Lisa Naylor
                                 Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243

                                 Katie 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

                 In 1991, the petitioner, Marvin Goodman, was convicted of two

separate drug offenses1 and received concurrent sentences of six and eight years.

In 1993, after a conviction for escape, he received a two-year sentence to be served

consecutively to the 1991 sentences. In this action, the petitioner sought relief on

two different grounds:

                 (1) that the 1989 Sentencing Reform Act violates the
                 Separation of Powers Clause of the Tennessee
                 Constitution; and

                 (2) that the 1989 Sentencing Reform Act violates the
                 determinate sentencing law.

After an evidentiary hearing, 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).



                 Here, the petitioner has neither alleged that the Hamilton County trial

court lacked jurisdiction nor that his sentence has expired. Thus, no claim for

habeas corpus relief has been stated. See Monroe E. Davis v. Jimmy Harrison,


        1
          The jud gm ent form s are not included in the re cord. This info rm atio n appears in an affidavit
in the technical record.

                                                      2
Warden, No. 02C01-9607-CC-00242, slip op. at 4 (Tenn. Crim. App., at Jackson,

July 2, 1997) (holding these identical challenges to the Sentencing Act do not state

a claim for habeas corpus relief).



              Had this court been able to reach the merits of the claims, the

petitioner would not have prevailed. The Separation of Powers Clause of the

Tennessee Constitution 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 1989 Sentencing Reform Act requires the trial judge to "determine

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

determination is an important factor in determining release eligibility. See Tenn.

Code Ann. § 40-35-501. The petitioner argues that because the trial court was

required by statute to determine the applicable range, an impermissible invasion of

the "province of the executive branch" had taken place. The petitioner 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.



              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

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

                                           3
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." 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). That ruling would control in these circumstances.



              The petitioner has next alleged that the 1989 Sentencing 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, an enactment which requires courts to "impose a

specific sentence length for each offense. ... There are no indeterminate

sentences."



              Parole, however, 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.

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

possibility of parole does not render a sentence indeterminate. Range


                                             4
classifications and release eligibility determinations do not create the possibility of

indeterminate sentences. See also 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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