        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                        NOVEMB ER SESSION, 1998        August 19, 1999

                                                   Cecil W. Crowson
GARVIN T. SHEPHERD,           )                  Appellate Court Clerk
                                  C.C.A. NO. 01C01-9710-CC-00452
                              )
      Appe llant,             )
                              )
                              )   WAYNE COUNTY
VS.                           )
                              )   HON. ROBERT L. JONES
JAMES M. DAVIS, Warden,       )   JUDGE
WAYNE COUNTY BOOT             )
CAMP, and                     )
STATE OF TENNESSEE,           )
    Appellees.                )   (Habea s Corpu s Relief)




FOR THE APPELLANT:                FOR THE APPELLEE:

JOHN E. HERBISON                  JOHN KNOX WALKUP
2016 E ighth Ave nue So uth       Attorney General and Reporter
Nashville, TN 37204
                                  LISA A. NAYLOR
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  MIKE BOTTOMS
                                  District Attorney General

                                  J. DOUG DICUS
                                  Assistant District Attorney
                                  P. O. Box 1119
                                  Wa ynesbo ro, TN 3 8485



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       On June 24, 1995, Appellant Garvin T. Shepherd filed a petition for habeas

corpus relief in the Circu it Court of W ayne C ounty, as serting tha t his sente nce

had expired. On N ovembe r 1, 1995, the trial court dismissed the petition for lack

of subject ma tter jurisdic tion. On September 19, 1996, this Court reversed the

judgment of the trial cou rt and rem anded the case for further pr oceed ings. After

an evidentiary hearing on May 8, 1997, the trial court dismissed the petition as

being withou t merit. A ppella nt cha llenge s the d ismiss al of his petition. After a

review of th e record , we affirm th e judgm ent of the tria l court.



                                   BACKGROUND




       On January 5, 19 72, Appellan t received a ninety-nine year sentenc e for a

rape conviction . On September 24, 1984, Governor Lamar Alexander signed an

order of execu tive cleme ncy that comm uted Appellant’s ninety-nine year

sentence to a sentence of twenty years. The order of executive clemency stated

that the commutation contained the following conditions:

               1) [Appellant] is to lead the life of a good citizen, obey the laws, and
       not be guilty of co nduct w hich is ille gal or improper in the opinion of the
       Governo r.
               2) [Appellant] will be unde r parole and/or commutation supervision
       by the Boa rd of Paro les until the e xpiration of h is original sentence, and
       must abide by the terms of this supervision.
               3) [Appella nt] is not to use, possess, or be associated with, any type
       of firearm s or illegal dru gs.
               In the event the Governor determines that any of the foregoing
       conditions have been violated, the Governor in his discretion may revoke
       this grant of executive clemency and require the grantee to undergo the
       remainder of his/her sentence. The Governor shall be the sole judge as
       to whether any of th e afore said conditions have been violated, an d there
       shall be n o review o f his action th ereon b y any Co urt whats oever.


                                           -2-
      On October 8, 1984, the effec tive date of the orde r of executive clem ency,

Appe llant was released from custody. On September 19, 1986, Appellant was

arrested and charged with aggravated rape. Appellant pled guilty to rape on

October 30, 1987, and he received a twelve year sentence on December 4, 1987.

On August 25, 1988, Governor Ned McWherter signed an order that revoked

Appe llant’s com muta tion. Th e revo cation order p rovided that App ellant was to

receive credit for all “street time” and that Appellant’s new twelve year sentence

was to begin on the probationary parole date of the original ninety-nine year

senten ce.



      In 1990 , Appe llant filed a petitio n for ha beas corpu s relief in the Cir cuit

Court of David son C ounty , asse rting tha t his confinement on the ninety-nine year

sentence was illegal because the Governor had no legal a uthority to revo ke his

commutation and rein state the previo us sen tence. The trial court dismissed the

petition withou t a hea ring, an d App ellant a ppea led. This C ourt su bseq uently

affirmed the dismissal of the petition, holding that the Governor did have legal

authority to revoke the commutation and reinstate the original sentence because

the commutation was expressly conditioned on Appellant’s good behavior

throughout the term of his original sen tence. State ex rel. Garvin S hepherd v.

Jack Morgan, No. 89-287-III, 1990 WL 78944, at *2–4 (Tenn. C rim. App .,

Nashville, June 13, 1990).



      On June 24, 1995, Appellant filed the petition in th is case in the C ircuit

Court of Wayne County, asserting that he was entitled to release from prison

because the revocation of his commutation was void and the subsequent

sentence of twelve years he received in 1987 had expired. On November 1,

                                         -3-
1995, the trial court dismissed the petition without a hearing on the basis of a lack

of subject ma tter jurisdiction. This Cou rt subs eque ntly reversed the judgment of

the trial court and remanded the case fo r a determination of whether the

commuted senten ce had expired, sta ting that if the c omm uted se ntence had

expired, then the c omm utation rev ocation w as void.         Garvin T. Shep herd v.

James M. Da vis, No. 01C 01-960 1-CC -00007 , 1996 W L 5299 94, at *1 (Tenn.

Crim. App., Nashville, Sept. 19, 1996). After an evidentiary hearing on May 8,

1997, th e trial court d ismisse d the pe tition as be ing withou t merit.



                                      ANALY SIS




       Appellant contends that he is entitled to habeas corpus relief becau se both

of his sentences h ave ex pired. A ppella nt argu es tha t the rev ocatio n of his

commutation was void because the Governor had no power to revoke his

commutation once the commuted sentence had expired. Appellant also argues

that because the revocation of his commutation was void, he has been serving

his subsequent twelve year sentence, not his original ninety-nine year sentence,

and his twelve year sentence has expired.



                             A. Habeas Corpus Relief




       It is well-estab lished in T ennes see tha t habeas corpus re lief is only

available when a conviction is void bec ause th e convictin g court w as without

jurisdiction or authority to sentence a defendant, or when a defendant’s sentence

has expire d and the de fenda nt is being illega lly restrained . Archer v. State, 851

S.W .2d 157 , 164 (T enn. 19 93); Johns v. Bowlen, 942 S.W.2d 544, 546 (Tenn.

                                           -4-
Crim. App. 1996).      Because Appellant contends th at the re vocatio n of his

commutation was void and therefore his sentences have expired, a petition for

habeas corpus relief is the ap propriate metho d for see king relief. See Ricks v.

State, 882 S.W .2d 387, 390 (Tenn. Crim . App. 1994 ).



                           B. Power of Commutation




      Article III, Section 6 of the Tennessee Constitution provides that the

Governor “shall have the power to grant reprieves and pardons, after conviction,

except in cases of impea chme nt.” Tenn . Const. a rt III, § 6. Th is power to grant

reprieves and pardons “embraces the right to commute a sente nce, that is , to

impose a lesser or shorter sentence for the sentence imposed following a

defen dant's conviction.” Carroll v. Raney, 953 S.W .2d 657, 659 (Tenn. 199 7);

Bowen v. State, 488 S.W .2d 373 , 375 (Tenn. 1972). The commuted sentence

stands as if it had be en the jud gmen t impose d in the first ins tance. Carro ll, 953

S.W .2d at 659 ; Bowen, 488 S.W.2d at 375.



      “The Governor’s power to grant reprieves, pardons and commutations is

limited only by the language in the Constitution.” Carro ll, 953 S.W.2d at 659.

Thus, “neither the legislature nor the judicial branch of government has the

authority to regulate or con trol the governor’s po wer to com mute a se ntence.” Id.

at 660 (quoting Ricks, 882 S.W .2d at 391). In addition, the Governor has the

authority to attach conditions or restrictions to a com muted se ntence that are

“reasonable, legal, and possible for the defe ndant to perform.” Carroll, 953

S.W .2d at 660 ; Ricks, 882 S.W .2d at 392 .




                                          -5-
      “By accepting the conditional com mutation, the p risoner accepts the

conditions imposed therein.” Wh ite v. State, 717 S.W.2d 309, 310 (Tenn. Crim.

App. 1986). If the prisoner subsequently violates one of the conditions, the

Governor has the p ower to re voke the comm utation. Id.; State ex rel. Garvin

Shepard , 1990 WL 78944, at *3.



                 C. Revocation of Appellant’s Commutation




      In this case, the State concedes that although Ap pellant’s original ninety-

nine year sentence had not expired, his commuted sentence of twenty years had

expired before the Governor revoked the commutation. The State also concedes

that if the revocation was invalid, Appellant’s additional twelve year sentence has

expired and h e is entitled to be released from cu stody. Thu s, the o utcom e of this

case depends on whether the Governor has the power to revoke a conditional

commutation when a priso ner vio lates th e con ditions during the term of the

original sentence, even though the period of the commuted sentence has

expired. W e conclude that the Govern or does ha ve this power.



      W e conclude that the Governor may revoke a conditional commutation

when a prisoner violates the conditions at any time before the term of the original

sentence expires.     Indeed, tha t is the express holding of the only reported

Tennessee case tha t is directly on p oint. In White v. State, 717 S.W.2d 309

(Tenn. Crim. App. 1986), the prisoner’s original ninety-nine year sentence had

been commuted to “time served” on the condition that he “obey all rules and

regulations of the authority having custody of him, lead the life of a good citizen,

obey all the laws of the Nation, States, and Municipalities and s hall not be gu ilty

                                         -6-
of other conduct, in the opinion of the Governor, improper and illegal.” The

prisoner was subs equently con victed of another crime, and the Governor revoked

his commutation.     Thereafter, the prisoner appealed the revocation of his

commutation, claiming that the revocation was invalid because the Governor had

no power to revo ke his commutation after his commuted sentence expired. As

support for his proposition, the prisoner relied on Rowell v. Dutton, 688 S.W.2d

474 (Ten n. Crim . App. 1 985), in which this Court held that the Governor could not

revoke a commutation after the original sentence had expired.           This Court

rejected the prisoner’s contention and held that because the prisoner’s

commutation was expre ssly co ndition ed on his good behavior for the term of the

original sentence, the Governor had the power to revoke the commutation when

the prison er breac hed the condition . Wh ite, 717 S.W.2d at 310. In so holding,

this Court distinguished Row ell by noting that the commutation in Row ell was not

condition al. Wh ite, 717 S.W.2d at 310.



      Desp ite Appellant’s assertion to the contrary, the holding of this Court in

Wh ite has never been overruled or modified. In State ex rel. Garvin S hepard,

1990 WL 78944, this C ourt held that the trial court did n ot err when it dismissed

Appe llant’s previous petition for h abeas corpus relief in w hich h e ess entially

made the exac t same claim tha t he is ma king in this case. In so h olding , this

Court stated tha t becau se App ellant’s commutation was expressly conditioned

on his good behavior for the term of his original ninety-nine year sentence, the

Governor had the power to revoke the conditional commutation at any time

before the ninety-nine year sentence expired. 1990 WL 78944, at *3. In so

holding, this Court distinguished Row ell by notin g that th e revo cation in Rowell

occurred after the prisoner’s original sentence had already expired while the

                                        -7-
revocation of Appellant’s commutation occurred long before his original sentence

expired. 1990 WL 78944, at *3. In Carroll v. Raney, 868 S.W.2d 721 (Tenn.

Crim. App. 1993 ), this Court held that a p risoner was e ntitled to an evidentiary

hearing on his pe tition for hab eas co rpus relief s o that the trial court c ould

determine whether his sentence had expired before the Governor had revoked

his commutation. This Court cited Wh ite and stated th at the tria l court s hould

determine whether the commutation was conditional becau se “[u]nless there

were specific conditions attached to the original commutation, the petitioner may

be entitled to release .” Id. at 723–24.



      Appellant relies on Ricks v. S tate, 882 S.W.2d 387 (Tenn. Crim. App.

1994), for the proposition that this Court has abandoned the rule on revocation

of conditional commutations as recited in Wh ite, State ex rel. Garvin She pherd,

and Carro ll. In Ricks, the prisoner’s original eighty-five year sentence had been

commuted to forty years on the condition that he was to be “under parole and/or

commutation supervision by the Boards of Paroles until the expiration of his

original sentence.” The Governor subs eque ntly revoked the commutation after

the Board of Paroles recommended revocation because the prisoner had violated

his parole. The prisoner claimed on appeal that the revocation was invalid

because the Governor had revoked his commutation after the commuted

sentence had expired. This Court affirmed the dismissal of the prisoner’s petition

for habeas corpus relief afte r it concluded that the revocation was valid because

it occurred before the com muted senten ce had expired. Id. at 392 –93. T his

Court then noted that because the prisoner’s commuted sentence had not

expired before revocation, there was no need to address the question of whether

the revoca tion wo uld ha ve bee n valid if it had occurred after the commuted

                                           -8-
sentence had exp ired. Id. at 393 n.2 3. This Court stated, “[i]f the appellant had

established that the commute d sen tence of forty (4 0) yea rs had expire d, this

issue would h ave to be reso lved.” Id.



      Appellant contends that this Court’s statement in Ricks that this issue

would have to be “resolved” if the commuted sentence had expired means that

this Court had abandoned the rule recited in the previous cases. We do not

agree that the dicta in Ricks changed the established law as recited in this

Cou rt’s previous cases.   It is evident that the Ricks dicta meant that if the

prison er’s commuted sentence had expired before the revocation, this Court

would have had to “address” the issue, not that the issue had never been

“resolved”. Indeed, in William D. Carroll v. Fred Raney, No. 02C01-9510-CC-

003, 1996 W L 2191 52 (Te nn. Crim . App., Ja ckson, M ay 2, 199 6), affirmed on

other grounds, 953 S.W .2d 65 7 (Te nn. 19 97), this Court reversed the judgment

of the trial court and dismissed the prisoner’s petition for habeas corpus relief

after holding that the Governor had the power to revoke the conditional

commutation when the prisoner violated the conditions, even though the

commuted sentence had expired. Indeed, this Court cited State ex rel. G arvin

Shephe rd for the proposition that because the commutation was conditional, the

Governor retained the po wer to revoke it until the term of the original sentence

had exp ired. Id., 1996 WL 219152, at *3–4.



      Appellant also relies on one sentence from the recent Tennessee Supreme

Court case of Carroll v. Raney, 953 S .W .2d 65 7 (Te nn. 19 97), to s uppo rt his

proposition that the Governor cannot revoke a commutation once the commuted

sentence has exp ired. In Carro ll, the supreme court stated, “Upon a finding that

                                          -9-
a cond ition [of a cond itional c omm utation ] has b een vio lated, the commuted

sentence may be revoked by the Governor, provided that the sentence has not

expired.” Id. at 660 (citing Rowell v. Dutton, 688 S.W.2d 474, 477 (Tenn. Crim.

App. 1985)). W e do no t agree with Appellant that this somewhat ambiguous

statement chan ged th e esta blishe d law regard ing the revocation of conditional

commutations. As previously explained by this Court in State ex rel. G arvin

Shephe rd, the sentence that had expired in Row ell was the original sentence, not

a conditional commuted senten ce. See State ex rel. Garvin S hepherd , 1990 WL

78944 at, *3. Thus, the supreme court’s citation to Row ell, indicates th at the

“sentence” the supreme court was referring to is an “original sentence” rather

than a “commuted sentence”. We do not think that the supreme court intended

to mak e a m ajor ch ange in the e stablis hed law regarding the revocation of

conditional commutations in such an off-hand mann er. Indeed, the Tennessee

Court of Appeals h as recently examined this same issue and has come to the

same conclus ion. See Jame s A. Lem ay v. State , No. 01-A-01-9807-CH-00397,

1999 W L 43047 5, at *3 (T enn. C t. App., Nashville, June 29, 1999) (holding that

the Governor may revoke a conditional commutation at any time before the

original sentence expires and stating that the sup reme court’s statem ent in

Carro ll does not alter this rule). 1



         1
          Appellant also argues that regardless of the established law regarding the revocation of
conditional commutations, he is entitled to relief under the law of the case doctrine. Specifically, Appellant
relies on a statement in Garvin T. Shepherd , 1996 WL 529994, at *1, in which this Court indicated that
Appellant would be entitled to relief if he could establish that his comm uted sentence had ex pired before
the revocation was undertake n. However, the law of the case doctrine is not a constitutional manda te or a
limitation on the pow er of a co urt. Memphis Pub. Co. v. Tennessee Petroleum Underground Storage
Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). Rather, it is a discretionary doctrine that need not be
applied w hen the p rior ruling wa s clearly erro neous and wo uld result in a man ifest injustice if allowed to
stand. Id. First, it should be noted that this statement is dicta and is not necessary to the narrow holding
of the previous case. Second ly, and perhaps more im portantly, the statement was made by this Court
while this Court was under the mistaken impression that the terms of the commutation lasted only for the
term of the sentence as commuted rather than the sentence as imposed. As noted previously, the express
terms of the commutation, as accepted by Appellant, clearly submit him to supervision for the term of the
sen tenc e as o rigina lly imp ose d. Fo r thes e rea son s we declin e to a pply th e law of the cas e doc trine in this
app eal.

                                                       -10-
                                 CONCLUSION




      In conclusion, Appellant is not entitled to habeas corpus relief.         The

established law in Tennessee is that the Governor may revoke a conditional

commutation any time the co mmu tee violates the con ditions before the term of

the original se ntence has exp ired. See Wh ite, 717 S.W .2d at 310 ; State ex rel.

Garvin Shepard , 1990 WL 78944, at *3; see also Carro ll, 868 S.W.2d at 723–24;

William D. Ca rroll, 1996 WL 219152, at *3-4; James A. Lemay, 1999 WL 430475,

at *3; White v. Livesay, 715 F.S upp. 202, 203 (M.D. Tenn. 1989). Because

Governor McWherter revoked Appellant’s commutation before the ninety-nine

year term of the origin al senten ce had expired, the revocatio n was va lid.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




                                        -11-
