        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                            JANUARY SESSION, 1997         April 24, 1997

                                                      Cecil W. Crowson
STEVE L. BRYANT,                )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9605-CR-00190
                                )
      Appe llant,               )
                                )
                                )    DAVIDSON COUNTY
VS.                             )
                                )    HON. J. RANDALL WYATT, JR.
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Habeas Corpus)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                   FOR THE APPELLEE:

PARRISH B. STANTON                   CHARLES W. BURSON
209 T enth Av enue S outh            Attorney General and Reporter
Nashville, TN 37203
                                     LISA A. NAYLOR
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243

                                     VICTOR S. JOHNSON
                                     District Attorney General

                                     KATRIN N. MILLER
                                     Assistant District Attorney General
                                     Washington Square, Suite 500
                                     222 Se cond A venue N orth
                                     Nashville, TN 37209-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

      This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appe llate

Procedure. The Defendant filed a petition seeking habeas corpus relief on the

grounds that Tennessee’s sentencing law s violate the separa tion of powers

clause of the Tenn essee C onstitution and tha t the sentence s authorized a re

indeterm inate in nature and thus contrary to law. The trial court denied habeas

corpus relief. W e affirm the judgm ent of the tria l court.



      The petition for writ of habeas corpus alleges that the Defe ndan t is in the

custody of the Tennessee Department of Correction as a result of being

convicted of burglary and larceny on Ja nuary 19, 19 89, in the Criminal Court of

Davidson County, Tennessee. The petition alleges that the Defendant received

a sente nce of eig hteen ye ars to be served a t thirty-five perce nt (35% ).



      W e first note that a p etition fo r writ of hab eas c orpus mus t conta in a copy

of the “legal process” u pon which re straint is based, or a satisfactory reason for

its absence. Tenn. Code Ann. § 29-21-107(b)(2). The petition in this case

contains neither. This omission alone would warrant the trial court’s dismissal of

the petition. State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (T enn. 1965 ).

In a habeas corpus proceeding, the burden of showing the invalidity of the

judgment of conviction is upon the petitioner, “and in the absence of a production

of the judgment, or a copy thereof, we must presume it was and is valid in a ll

respec ts.” State ex re l. George v. Bomar, 390 S.W .2d 232, 234 (Tenn. 196 5).

It is the Appellant’s obligation to have pre pared a n adeq uate rec ord in ord er to



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allow meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v. Banes, 874

S.W.2d 73, 82 (Te nn. Crim . App. 19 93). The trial court did not err when it denied

habea s corpu s relief.



        On appeal, the Defendant argues that our statutory scheme of sentencing

violates the sep aration o f powers clause o f the State Constitu tion. See Tenn.

Cons t. art. II, §§ 1 & 2. In sentencing a defendant, the trial judge must first

determine the appropriate sentencing range which determines the release

eligibility percentage.         The Defendant argues that this judicial function

encroaches upon the power of the executive branch to determine an inmate’s

parole eligibility. The De fendant therefo re argues that we should strike down our

entire sentencing code.1           W e reject the Defendant’s argument because we

conclude that it has no merit. Some functions of the three departm ents of sta te

government are nec essarily ove rlapping a nd interd epend ent. We believe this is

particu larly true in our criminal justice system . See Lavon v. S tate, 586 S.W.2d

112, 115 (T enn. 19 79); Unde rwood v . State, 529 S.W .2d 45, 47 (T enn. 1975 );

Woods v. State, 130 Tenn . 100, 169 S.W. 558 (1914). Accordingly, we do not

believe the judicial function of setting sentencing ranges is an unconstitutional

encroachment on the powers of the excecutive branch.



        The Defendant further argues that the sentencing ranges along with the

release eligibility percentages establish indeterminate sentences in violation of

Tennessee Code Annotated section 40-35-211, which prohibits indetermin ate

sentences. We also reject this argument because we conclude that it has no


1
 Because the D efendant was convicted in 1989 , he was sentenced un der the Sentencing Reform
Act of 1982. Therefore, his challenge would actually be to the 1982 Act. This distinction is not
material to our analysis of the issues.

                                                 -3-
merit. The fact that the Board of Paroles may grant or deny parole does not

convert a determinate sentence into an indeterminate sentence. Parole does not

cause a senten ce to exp ire or term inate but is a con ditional release from more

restrictive confinem ent. See Howell v. State; 569 S.W .2d 428, 433 (Tenn. 197 8);

Doyle v. Hampton, 207 Tenn. 399, 403, 340 S.W.2d 891, 893 (1960). A parolee

remains in con structive custo dy until the exp iration of the full term of his or her

senten ce. How ell, 569 S.W.2d at 433.



        The writ of habeas corpus, codified at Tennessee Code Annotated sections

29-21-101 to-130, is to be issued only in the case of a void judgment or to free

a prisoner held after the term of imprisonment has expired. Tenn . Code Ann. §

29-21-101; Archer v. State, 851 S.W .2d 157 , 164 (T enn. 19 93); Flowers v.

Traughber, 910 S.W.2d 468, 469 (Tenn. Crim. App. 1995).                                    The sole relief

available under Tennessee’s habeas corpus statute is discharge from custody.

Taylor v. Morgan, 909 S.W .2d 17, 20 (Tenn . Crim. A pp. 199 5). For the reasons

stated in this opinion, we cannot conclude that the trial judge erred by denying

the Defendant’s request that he be released. Therefore, we conclude that the

petition for writ of habeas corpus was properly dismissed.2



         The judgment of the trial court is affirmed.




2
 This co urt has n ot been r eceptive to similar c hallenge s to our s entenc ing laws. See Frank Bell v.
Ricky Bell, Warden, C.C.A. N o. 01-C -01-960 2-CR -00058 , Davidso n Cou nty (Tenn . Crim. A pp.,
Nash ville, Jan. 30, 19 97); Eric C. P endleton v. State , C.C.A. No. 01-C-01-9604-CR-00158,
Davids on Co unty (Ten n. Crim . App., Na shville, Feb . 12, 1997 ); Joe T hom as Bak er, Jr. v. State ,
C.C.A. No. 01C01-9604-CR-00129, Davidson County (Tenn. Crim. App., Nashville, Feb. 20,
1997); Terry M errell v. State , C.C .A. N o. 01 C01 -960 4-C R-0 014 7, Da vidso n Co unty (T enn . Crim .
App., Nashville, Feb. 20, 1997).

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                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JOE G. RILEY, JUDGE




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