                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs April 28, 2000

          CLIFFORD L. TAYLOR v. STATE OF TENNESSEE, ET AL.

                    Appeal from the Chancery Court for Davidson County
                       No. 99-1314-II   Carol L. McCoy, Chancellor



                     No. M1999-02418-COA-R3-CV - Filed July 26, 2001


An inmate of the Tennessee Department of Correction sought a declaratory judgment that the
Department had incorrectly calculated his sentence. The trial court dismissed the petition, finding
no improper calculation. We affirm.

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

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

Clifford L. Taylor, pro se, Tiptonville, Tennessee.

Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Rae Oliver, Assistant
Attorney General, for the appellees, State of Tennessee, et al.

                                            OPINION

      Clifford L. Taylor, an inmate of the Tennessee Department of Correction, filed a declaratory
judgment action in the Chancery Court for Davidson County seeking a declaration that the
Department had improperly calculated his sentence. The trial court dismissed his petition, and he
now asks this court to:

       order Tennessee Department of Correction to re-calculate his life sentence without
       the Class X enhancement factors, including jail time, starting from the day he entered
       the Department of Correction. That the Department of Correction rescind the Class
       X waiver petitioner signed in 1986 and that the Department utilize all authorized
       sentence reduction credit laws that were applicable/authorized during his period of
       his incarceration in their recalculation process . . .
        Mr. Taylor was convicted on December 12, 1980, for offenses committed on February 22,
1980. Mr. Taylor’s convictions and sentences were summarized by the Court of Criminal Appeals
in State v. Taylor, 628 S.W.2d 42, 44 (Tenn. Crim. App. 1981):

         The defendant, Clifford Louis Taylor, was convicted of two counts charging
         aggravated kidnapping and sentenced to serve 30 years in the penitentiary on each of
         these charges. He was also convicted of armed robbery with a punishment fixed at
         a term of 15 years in the State penitentiary. Upon a finding that the defendant was
         a habitual criminal, the armed robbery sentence was enhanced from 15 years to life.
         The two sentences for aggravated kidnapping were ordered by the trial judge to be
         served concurrently with each other but consecutively to the enhanced armed robbery
         sentence. The trial judge further ordered that the three sentences imposed in this case
         be consecutive to a 25-year sentence for a previous conviction for which the
         defendant was on parole when he committed these offenses.

        The convictions and sentences were upheld on direct appeal and in subsequent proceedings,
and have not been modified.1 In addition, Mr. Taylor sought to have his parole eligibility dates
recalculated by the Parole Eligibility Review Board after passage of the Criminal Sentencing Reform
Act of 1989. Under that Act, the Board was authorized to amend the parole eligibility date of a
habitual criminal convicted prior to the Act to the date he or she would have received if convicted
after the Act.2 Tenn Code Ann. § 40-35-602 [repealed]. The Board denied Mr. Taylor an amended
release eligibility date, and this court affirmed the trial court’s dismissal of Mr. Taylor’s attempt to
gain judicial review of that denial. Jeffries, et al. v. State, No. 01A01-9406-CH-00281, 1995 WL
1689 at *1 (Tenn. Ct. App. Jan. 4, 1995) (perm app. denied May 8, 1995) (Mr. Taylor was one of
three inmates seeking relief).

        At the time of Mr. Taylor’s offenses and convictions, robbery with a deadly weapon and
aggravated kidnapping were both Class X felonies. Tenn. Code Ann. §§ 39-1-702(5) [repealed] and
39-2-301 [repealed]. Persons who committed such offenses on or after September 1, 1979, were
tried and sentenced under the Class X Felonies Act of 1979. Tenn. Code Ann. § 39-1-704
[repealed].

         Regarding Mr. Taylor’s Class X Felony convictions, the Court of Criminal Appeals stated:



         1
          State v. Taylor, 628 S.W.2d at 47; Taylor v. S tate, 1987 WL 13689 (Tenn. Cr. App. July 15, 1987) (denial of
postconviction relief); Taylor v. S tate, 1989 WL 34129 (Tenn. Crim. app. April 12, 1989) (dismissal of petition for
habeas corpus, wh ich the trial cour t treated as a p etition for po stconviction r elief); Taylor v. State , 1989 WL 126732
(Tenn. Crim. Ap p. Oct. 25, 1989) (dismissal of postconviction petition); State v. Taylor, 1994 WL 6 73138 (Tenn. Crim.
App. Nov. 30, 1994 (dismissal of petition for postconviction relief); Taylor v. S tate, 1997 WL 284710 (Tenn. Crim. App.
May 30, 1997) (dismissal of petition for writ of habeas corpus).

         2
             The Act was amended in 1993 to prevent the B oard from reviewing pa role eligibility date s of habitual crim inals
whose trigge ring offense wa s an offense ag ainst the perso n. Tenn C ode Ann .     § 40-35-602 [repealed].

                                                              -2-
        T.C.A. § 39-54023 specifies eleven offenses as Class X Felonies. These offenses are
        particularly heinous and dangerous to human life. T.C.A. § 39-5403 provides that
        these particular offenses are determinate in nature, not subject to reduction for good,
        honor or incentive time or other sentence credit or any sort, shall terminate only after
        service of the entire sentence, and shall not be subject to pretrial diversion.

State v. Taylor, 628 S.W.2d at 46-47.

        In the case before us now, Mr. Taylor refers to the consequences of sentencing as a Class X
felon as “enhancements” and asserts his sentence was not subject to such “enhancements” because:
(1) he was not brought to trial within 150 days of his indictment as required by Tenn. Code Ann. §
40-18-103, and (2) the sentencing court failed to denote Class X status on his judgment as dictated
by Tenn. Code Ann. § 40-28-301[repealed].

       The trial court dismissed the petition, denying Mr. Taylor the relief he sought stating, in
pertinent part:

        In State v. Wilcoxson, 772 S.W.2d 33 (Tenn. 1989), the Supreme Court stated that the
        Class X felony law was enacted, “not to benefit a defendant, but to identify and
        define specific offenses against society for which enhanced penalties and expedited
        proceedings were prescribed so as to assure swift and certain punishment for their
        violation.”

         In dismissing Mr. Taylor’s argument that the lack of a speedy trial precluded a Class X felony
sentence, the trial court relied upon Franklin v. State, 1984 LEXIS 2549 ( Tenn. Crim. App. August
6, 1984). In Franklin, the inmate asserted that because he was not brought to trial within 150 days
of his arraignment, his offense should not be considered a Class X felony. Mr. Taylor makes
essentially the same argument. The Court of Criminal Appeals, in Franklin, held that the state’s
failure to bring a Class X felon to trial within 150 days following his arraignment did not “warrant
or authorize the removal of a defendant’s Class X status just because the time requirement of the
statute was not complied with, regardless of the reason for noncompliance.” Id. Tenn. Code Ann.
§ 40-18-103, the statute which provided the 150 day directive, also specifically stated that failure to
conform to that requirement did not require the state to release a defendant from custody or to
dismiss the charges against him. Based upon Franklin, the trial court determined that such a failure
similarly does not require that a defendant be sentenced other than as a Class X felon. We agree with
the trial court’s holding and analysis; the 150 day requirement in Tenn. Code Ann. § 40-18-103 is
not mandatory, but is directory only. Id. Failure to meet the requirement does not change the fact
Mr. Taylor was convicted of a Class X felony and does not affect the sentence imposed. We affirm
the trial court on this issue.



        3
          Tennessee Code Annotated sections were renumbered after the quoted opinion was released. For this opinion,
we shall cite to the Code, as renumbered.

                                                        -3-
        Mr. Taylor’s second claim rests on Tenn. Code Ann. § 40-28-301(b) [repealed] which
provided that any person convicted of a Class X felony was to have all his official files stamped to
signify that status. Mr. Taylor alleges that the sentencing court failed to so stamp his judgment and
that by this failure the sentencing court indicated that Mr. Taylor “was not receiving an enhanced
sentence based on the state’s failure to meet the time requirement mandated by law.” Again, Mr.
Taylor is essentially asserting that he was not sentenced as a Class X felon. Such is simply not the
case.

         The Class X Felonies Act carried specific consequences for persons “convicted of a Class
X felony.” Tenn. Code Ann. § 39-1-703 [repealed]. The service of sentence and release eligibility
of persons convicted of a Class X felony were exclusively governed by the Act. Tenn. Code Ann.
§ 39-1-704 [repealed]. Mr. Taylor was convicted of offenses which at the time required sentencing
under the Class X Felonies Act. Id. The fact that his file was not marked with an X does not change
his conviction, his sentence, or the trial court’s judgment. Having been convicted of Class X
felonies, Mr. Taylor was subject to the “enhancements” to his sentence required by law.4 We share
the trial court’s conclusion on this issue.

       Mr. Taylor raised a third issue after the trial court heard the Department’s motion to dismiss,
but before it entered its order. Mr. Taylor sought to amend his complaint to argue that when he was
determined to be a habitual criminal, the sentence for the underlying offense, armed robbery, became
null and void. He contends that the enhancement of his sentence resulting from the habitual
criminal finding precludes any enhancement from the triggering offense’s Class X felony
designation. The trial court determined that the motion to amend was moot but that even if the court
were to consider the amendment, the complaint would require dismissal.5

        Mr. Taylor is correct in his assertion that once he was sentenced as a habitual criminal, the
underlying sentence for the triggering offense became void. “[H]abitual criminality is a status, not
an offense; and its finding calls for an enhancement of the punishment for the new offense . . . to life
imprisonment.” Meade v. State, 484 S.W.2d 366, 368 (Tenn. Crim. App. 1972). In other words, the
habitual criminal statutes recognized prior criminal convictions and used them as a means to enhance
the present sentence for the triggering offense. Mr. Taylor received one sentence for his armed


         4
          The Class X Felonies Act was repealed in 1989 by the Sentencing Reform Act of 1989. Tenn. Code Ann. §§
40-35-101 et seq. Additionally, prior to July 1, 1983, those convicted of Class X felonies were not entitled to sentence
reduction for good, honor, incen tive, or other sentence reduction cre dits. In 1983, the General A ssembly ad opted P ublic
Chapter 400, which made a person c onvicted o f a Class X felo ny eligible to rec eive prisone r performa nce credits to
reduce the expiration date of his or her sentence, but such credits did not affect the release classification eligibility date.
Tenn. Code Ann. § 40-28-301(I) [repealed]. In 1985, new legislation was adopted which allowed inmates convicted of
Class X felonies to become eligible to earn sentence reduction credits by signing a written waiver of his right to serve
his sentence und er the law in effect a t the time of his offense. Tenn. C ode Ann . § 41-21 -236(c)(1 990). M r. Taylor’s
request for re lief in this court, quo ted earlier, ind icates he signed such a waive r.

         5
          The trial court interpr eted M r. Taylor’s am endmen t as a claim of d ouble jeopardy and dismissed o n the basis
of Washington v. Harrison, No. 02 C01-97 03-C C-00097, 1998 Tenn. Crim. App. LEXIS 146 (January 30, 1998)
(proced ure for hab itual designatio n and setting o f punishmen t does not vio late doub le jeopard y.)

                                                             -4-
robbery conviction, “albeit a much more severe punishment based upon his designation as a habitual
criminal.” Washington v. Harrison, No. 02C01-9703-CC-00097, 1998 WL 32680 at *1 (Tenn.
Crim. App. Jan. 30, 1998) (perm. app. denied Oct. 12, 1998).

        Thus, we agree that Mr. Taylor’s fifteen year sentence for armed robbery has been subsumed
by his life sentence due to his status as a habitual criminal. However, we fail to see how that
determination helps him or provides the relief he requests. The habitual criminal statutes under
which Mr. Taylor was sentenced provided that when a habitual criminal was sentenced as such, “his
punishment shall be fixed at life in the penitentiary, and such offender shall not be eligible to parole,
nor shall such sentence be reduced for good behavior, for other cause, or by any means . . .” Tenn.
Code Ann. § 39-1-806 [repealed].6 Thus, the habitual criminal’s life sentence carries its own
“enhancements.”

        In addition to his life sentence as a habitual criminal, Mr Taylor was also sentenced to two
concurrent 30-year sentences, for offenses which were Class X felonies at the time of their
commission, and these sentences were to be served consecutive to the life sentence.7 In his original
petition, Mr. Taylor claimed that he was serving an enhanced punishment of a Class X felony
improperly because of the procedural issues discussed above. He also claimed that as of the date of
his petition he was eligible for parole on the sentence imposed by the court and that he is entitled to
the lesser penalty provisions of the law as it would apply without the enhancement factors, and asked
that his sentence be re-calculated to reflect such. That request presumes he was serving a Class X
sentence, rather than a life sentence as a habitual criminal.

       With regard to the issue raised in his amendment, in his brief, Mr. Taylor “avers that when
he entered the Tennessee Department of Correction he did not have a fifteen (15) year Class X
sentence, his only sentence was Habitual Criminal (life) sentence.” He later states that there is no
“Class X” enhancement attached to the habitual criminal statute. He finally argues that “the
Tennessee Department of Correction had no jurisdiction to alter petitioner’s sentence, by attaching
Class X enhancements to the life sentence. While we do not disagree, it appears that Mr. Taylor’s
emphasis on the impropriety of Class X “enhancements” ignores the “enhancements” which
accompany a life sentence as a habitual criminal.

       Mr. Taylor was sentenced to life imprisonment December 18, 1980, the sentence to be
consecutive to his sentence for the previous conviction for which he was on parole when he


         6
          Despite this language, a habitual criminal was eligible for parole after serving a term of not less than 30 years.
Tenn. Code A nn. § 40-3 613 (19 75). See Ma rsh v. State , 561 S.W.2d 767, 770 (Tenn. Crim App. 1997) (habitual
criminal is eligible for parole after 30 years). In addition, this court has explained that persons sentenced as habitual
criminals on the basis of a Class X felonies committed before December 11, 1985, became eligible to earn sentence
reduction credits, upon signing a waiver under Tenn. Code Ann. § 41-21-236. Wilson v. Department of Correction, No.
01A01-9806-CH -00302, 1999 W L 652016 at *1-2 (Tenn. Ct. App. Aug. 27, 199 9).

         7
         All three of the sentences resulting from the crimes committed by Mr. Taylor on February 22, 1980 , while he
was on parole, were to b e served after completion o f the remainder of his previously-impose d sentences.

                                                            -5-
committed these offenses. He is now serving his life sentence as a habitual criminal, and has not
begun his Class X felony sentences for aggravated kidnaping. 8 Therefore, he is correct that no Class
X enhancements are applicable to his current sentence; however, the enhancements attached to a life
sentence as a habitual criminal are applicable to it. It is unclear that the Department has applied any
Class X felony enhancements to him to his detriment since he is serving an enhanced life sentence.
Mr. Taylor has failed to allege any specific actions or consequences of the Department’s alleged
application of “Class X” enhancements to him.

         The Department has not addressed this issue, as Mr. Taylor points out. Included in the record
is a TOMIS Offender Sentence Letter prepared by the Department but filed by Mr. Taylor. That
letter appears to list his armed robbery conviction twice, once showing a Class X felony status, and
once showing a Habitual Criminal status. The Department appears to have credited him with
sentence reduction credits under both. However, nothing in the record indicates that Mr. Taylor’s
release eligibility date or other incident of his sentence has been negatively impacted by the
Department’s records or sentence calculation. He has been credited with various sentence credits
on his life sentence and has not alleged any miscalculation of those credits.

       Therefore, we affirm the trial court’s dismissal of his petition for declaratory judgment.
Costs of this appeal are taxed to the appellant, Clifford Taylor.



                                                                   ___________________________________
                                                                   PATRICIA J. COTTRELL, JUDGE




         8
            At the time of Mr. Taylor’s offenses, sentences consecutive to a life sentence began after th irty years. Howe ll
v. State , 569 S.W.2d 428 (Tenn. 1978).

                                                            -6-
