         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON          FILED
                          JUNE 1997 SESSION           July 2, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
MONROE E. DAVIS,                   )
                                   )    NO. 02C01-9607-CC-00242
      Appellant,                   )
                                   )    LAUDERDALE COUNTY
VS.                                )
                                   )    Hon. Joseph H. Walker, Judge
JIMMY HARRISON, WARDEN,            )
                                   )    (Petition for Writ of Habeas Corpus)
      Appellee.                    )



FOR THE APPELLANT:                      FOR THE APPELLEE:

MONROE E. DAVIS, pro se                 JOHN KNOX WALKUP
West Tennessee High Security            Attorney General and Reporter
Post Office Box 1050
Henning, TN 38041-1050                  WILLIAM DAVID BRIDGERS
                                        LISA A. NAYLOR
                                        Assistant Attorneys General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        ELIZABETH T. RICE
                                        District Attorney General
                                        302 Market Street
                                        Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Monroe E. Davis, appeals the order of the Circuit Court of

Lauderdale County summarily dismissing his petition for writ of habeas corpus. He

is presently serving sentences of 20 years for second degree murder and one (1)

year for larceny. According to his petition, he was convicted and sentenced on

October 6, 1989. Because he cannot demonstrate that the judgments convicting

him are void or that his sentence terms have expired, the judgment of the trial court

is affirmed.



                                           I



       Initially, we note that the state correctly points out that petitioner’s notice of

appeal was untimely filed. Tenn. R. App. P. 4(a) requires that a notice of appeal

should be filed “within 30 days from the date of entry of the judgment appealed

from. . .” The order denying the petition was entered January 25, 1996. Notice of

appeal was filed on July 8, 1996. However, in the interest of justice we waive the

filing requirements and review the petition on the merits. Tenn. R. App. P. 4(a).



                                           II



       In his first assignment of error, petitioner argues that Tenn. Code Ann. § 40-

35-501 allows the judicial branch to impose indeterminate sentences in direct

contravention to Tenn. Code Ann. § 40-35-211 which prohibits indeterminate

sentences. His argument rests on the fact that the Board of Paroles has the power

to grant or deny parole upon a defendant’s eligibility for release. Thus, he argues

that the sentences he received are void.

       Although Tenn. Code Ann. § 40-35-211 prohibits indeterminate sentences,

the sentences imposed upon Davis are not indeterminate. The mere fact that the

Board of Paroles may grant or deny parole does not convert a determinate sentence



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into an indeterminate one. Parole does not cause the sentence to expire or

terminate but is merely a conditional release. See Doyle v. Hampton, 207 Tenn.

399, 340 S.W.2d 891 (1960); Joe Thomas Baker, Jr. v. State, C.C.A. No. 01C01-

9604-CR-00129 (Tenn. Crim. App. filed February 20, 1997, at Nashville); Terry

Merrell v. State, C.C.A. No. 01C01-9604-CR-00147 (Tenn. Crim. App. filed

February 20, 1997, at Nashville). This issue has no merit.



                                           III



       Petitioner also contends that Tenn. Code Ann. § 40-35-501 is an

unconstitutional delegation of power by the legislature to the judicial branch by

allowing courts to determine a defendant’s sentencing range. He claims that by

doing so, the courts are determining how much time a defendant must serve before

becoming eligible for parole. Therefore, because parole is an executive function,

he argues that this sentencing scheme violates the separation of powers doctrine.

       The authority to grant paroles is not judicial in nature but is administrative.

Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914). However, “it has long been

recognized that it is impossible to preserve perfectly the theoretical lines of

demarcation between the executive, legislative and judicial branches of

government. . . There is necessarily a certain amount of overlapping. The three

departments are interdependent.” Underwood v. State, 529 S.W.2d 45, 47 (Tenn.

1975)(citations omitted); see also In re Burson, 909 S.W.2d 768, 774 (Tenn. 1995).

This is particularly so in our criminal justice system. See Underwood, 529 S.W.2d

at 47. Accordingly, we find that a trial court’s determination of sentencing range

does not infringe upon the powers of the executive branch. See Steve L. Bryant v.

State, C.C.A. No. 01C01-9605-CR-00190 (Tenn. Crim. App. filed April 24, 1997, at

Nashville). This issue is without merit.



                                           IV




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       Habeas corpus relief in criminal cases is limited to those instances where the

petitioner’s conviction is void on its face, or he is being held beyond the expiration

of his sentence. Archer v. State, 851 S.W.2d 157 (Tenn. 1993). Davis has not

shown that the judgments convicting him are facially void or that his sentence terms

have expired. The petition for writ of habeas corpus was properly dismissed.



       We conclude that the petitioner's claims do not show that his judgments are

void or that his sentences have expired, making habeas corpus relief inappropriate.

The judgment of the trial court is affirmed.




                                                  JOE G. RILEY, JUDGE




CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID H. WELLES, JUDGE




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