          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                      FEBRUARY SESSION, 1997          FILED
                                                      July 23, 1997

                                                 Cecil W. Crowson
JEFFREY LYNN BUSH,            )
                                               Appellate Court Clerk
                              )   No. 01C01-9605-CR-00204
      Appellant               )
                              )   DAVIDSON COUNTY
vs.                           )
                              )   Hon. J. RANDALL WYATT, JR., Judge
STATE OF TENNESSEE,           )
                              )   (Habeas Corpus)
      Appellee                )



For the Appellant:                For the Appellee:

SHAWN A. TIDWELL                  CHARLES W. BURSON
Stanton, Tidwell & Mendes, PLLC   Attorney General and Reporter
Cummins Station, Suite 507
209 Tenth Avenue South            DARYL J. BRAND
Nashville, TN 37203               Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493


                                  VICTOR S. (TORRY) JOHNSON III
                                  District Attorney General

                                  KATRIN N. MILLER
                                  Asst. District Attorney General
                                  Washington Sq., Suite 500
                                  222-2nd Ave. N.
                                  Nashville, Tn 37201-1649



OPINION FILED:


AFFIRMED


David G. Hayes
Judge
                                                 OPINION



         The appellant, Jeffrey Lynn Bush, appeals the order of the Davidson

County Criminal Court dismissing his petition for writ of habeas corpus. In May

1994, the appellant was convicted in the Sumner County Criminal Court of

attempted first degree murder. Presently, the appellant is confined at the

Riverbend Maximum Security Institution in Davidson County, where he is serving

a fifteen-year sentence for this conviction. In August, 1995, the appellant filed a

petition for writ of habeas corpus. On November 21, 1995, the trial court entered

an order denying the appellant's petition.



         On appeal, the appellant alleges that his sentence is void because:

         I. his sentence is indeterminate and, thereby, violates Tenn. Code
         Ann. § 40-35-211 (1989); and

         II. his sentence violates the separation of powers clause of the
         Tennessee Constitution.1




                                    I. Indeterminate Sentences

         The appellant first contends that the release eligibility provisions under

Tenn. Code Ann. § 40-35-501 (1989) create indeterminate sentences, which are

prohibited by Tenn. Code Ann. § 40-35-211.2 He bases this allegation on the



         1
           Th ese identical issues h ave previously been add ressed in other dec isions by this co urt.
See, e.g., Ma sse ngill v. State , No. 01C01-9605-CR-00191 (Tenn. Crim. App. at Nashville, May
16, 1997 ); Stee le v. State, No. 01C01-9512-CC-00409 (Tenn. Crim. App. at Nashville, Apr. 30,
199 7); Bryan t v. State, No. 01C0 1-9605-C R-001 90 (Te nn. Crim . App. at Nashville, Apr. 24, 1997);
Ch ilds v. Sta te, No. 01C 01-9 604 -CR -001 64 (T enn . Crim . App . at Na shville, Apr. 24 , 1997); To llett
v. State. No. 01C 01-9 605 -CR -001 80 (T enn . Crim . App . at Na shville, Apr. 24 , 1997); Bak er v.
State , No. 01C 01-9 604 -CR -001 29 (T enn . Crim . App . at Na shville, Feb. 2 0, 1997); Me rrell v. State,
No. 01C01-9604-CR-00147 (Tenn. Crim. App. at Nashville, Feb. 20, 1997). In Massengill, No.
01C01-9605-CR-00191, this same panel reviewed issues identical to those sub judice with
acc om pan ying indistinguishab le briefs .

         2
             Te nn. C ode Ann . § 40-35-211 provides, in pertine nt part:

         "In fixing a sentence for a felony or misdemeanor, the court shall impose a
         specific sentence length for each offense.

         (1) Specific senten ces for a fe lony shall be fo r a term of ye ars or m onths or life, if
         the defendant is sentenced to the department of correction . . . . There shall be

                                                      2
discretionary authority of the Board of Paroles to either grant or deny parole.

Thus, he argues, because the decision of the Board to grant or deny him parole

is uncertain, his sentence is indeterminate.



         The fact that parole results in an inmate being released from confinement

does not result in terminating the original sentence imposed by the sentencing

court. Howell v. State, 569 S.W.2d 428, 433 (Tenn. 1978). Parole does not

cause the sentence to expire or terminate, but is merely a conditional release

from confinement. See Doyle v. Hampton, 340 S.W.2d 891, 893 (1960); see

also Merrell, No. 01C01-9604-CR-00147. The appellant confuses the terms

"sentence" and "parole." Indeed, even though released from confinement, the

defendant continues in constructive custody until the expiration of the full term of

his sentence. Howell, 569 S.W.2d at 433. Thus, the sentence imposed by the

sentencing court remains determinate. As the trial court concluded, "[t]he parole

board has no authority to determine the term of the sentence, but it does have

discretion in deciding how that sentence will be served." This issue is without

merit.



                                     II. Separation of Powers

         Next, the appellant alleges that Tenn. Code Ann. §40-35-601(1992) and

Tenn. Code Ann. § 40-35-211 (1989), establishing a parole system for eligible

inmates, violate the separation of powers clause of the Tennessee Constitution.

The appellant argues that the authority of the Board of Paroles to grant or deny

parole unconstitutionally encroaches upon the power of the judiciary to impose

sentences. Specifically, he argues that the legislature, by enacting Tenn. Code

Ann. § 40-35-601, usurped the judiciary's sentencing power and bestowed it



         no ind eterm inate s ente nce s. Se nten ces for all felonies . . . shall be d eterm inate
         in natu re, an d the defe nda nt shall be respo nsible for the en tire senten ce. . . .



                                                      3
upon the Parole Board, a legislatively created entity.



       The doctrine of separation of powers, as set forth in Article II of the

Tennessee Constitution, is a fundamental principal of American constitutional

government.3 Town of South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn.

1992) (citation omitted). Our constitution divides the powers of government into

three distinct, independent, and coordinate departments, namely, legislative,

executive, and judicial, with express prohibition against any encroachment by

one department upon the powers, functions, and prerogatives of the others,

except as directed or permitted by some other provision of the constitution.

Richardson v. Young, 122 Tenn. 471, 491, 125 S.W. 664, 668 (1910). While it is

the province and duty of the judicial department to interpret the law, it is equally

the exclusive province of the legislature to formulate polices, mandate programs,

and to establish their relative priority, and, once the legislature, exercising its

delegated powers, has decided the policy in a given area, it is for the executive

department to administer the laws and for the courts to enforce them when

enforcement is sought. Tennessee Valley Authority v. Hill, 437 U.S. 153, 194, 98

S.Ct. 2279, 2301-02 (1978); see also Richardson v. Young, 122 Tenn. at 493,

125 S.W. at 668.



       The setting of punishment is a legislative function. See Lavon v. State,

586 S.W.2d 112 (Tenn. 1979); Sandford v. Pearson, 231 S.W.2d 336 (Tenn.

1950). Inherent within the legislature's function to establish punishment is its

authority to promulgate laws devising and establishing a statutory scheme of

parole. Also within the legislature's authority is the ability to create an



       3
        Article II of the Tennessee Constitution provides:
       Sec. 1. Division of Powers. -- The powers of the Government shall be divided
       into three distinc t departm ents: the Legislative, E xecutive, 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.

                                               4
administrative agency to oversee and implement the expressed policy and

program of the statutes pertaining to parole. Cf. State v. Edwards, 572 S.W.2d

917, 919 (Tenn. 1978).



       The authority to grant parole to eligible inmates rests with the Board of

Paroles, an agency of the executive branch. Tenn. Code Ann. § 40-28-103, -

106. As established by our legislature, the authority to grant paroles is not

judicial in nature, but is administrative. Woods v. State, 130 Tenn. 100, 114, 169

S.W. 558, 560 (1914). The administration of the parole system is neither purely

judicial, legislative, nor executive, but rather, belongs "to the great residuum of

governmental authority, the police power, to be made effective, as is often the

case, through administrative agencies." Id. As such, the laws regarding

sentencing and paroles do not unconstitutionally confer judicial powers upon

executive officers. This issue is without merit.




                                  III. Conclusion

       In Tennessee, habeas corpus relief is only available when a conviction is

void because the convicting court was without jurisdiction or authority to

sentence a defendant, or that a defendant's sentence has expired and he is

being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In

the present case, the appellant's allegations, even if true, would not render his

convictions void, but merely voidable. The appellant has failed to establish that

the sentencing court was without jurisdiction or authority to sentence the

appellant, nor is there any proof that his sentence has expired. Accordingly, we

conclude that the petition for a writ of habeas corpus was properly dismissed.

The judgment of the trial court is affirmed.




                                          5
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:



_______________________________
GARY R. WADE, Judge


_______________________________
CURWOOD WITT, Judge




                                  6
