RONALD L. DAVIS,                )
    Petitioner/Appellant,       )   Appeal No.
                                )   01-A-01-9610-CH-00487
v.                              )
                                )
TENNESSEE DEPARTMENT OF         )   Chancery Court No.
CORRECTION and DONAL            )   96-304-II
CAMPBELL, Commissioner,         )
    Respondents/Appellees.      )
                                                          FILED
                                                          February 21, 1997

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
                   COURT OF APPEALS OF TENNESSEE

                    MIDDLE SECTION AT NASHVILLE


     APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

                       AT NASHVILLE, TENNESSEE


         THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




RONALD L. DAVIS, PRO SE
N.W.C.C.
Rt. 1 Box 660
Tiptonville, TN 38079



CHARLES W. BURSON
Attorney General and Reporter

BRENDA RHOTON LITTLE
Counsel for the State
Parker, Allen & Crawford
Suite 511, Cummins Station
209 10th Avenue, South
Nashville, Tennessee 37203
      ATTORNEY FOR RESPONDENTS/APPELLEES


                       AFFIRMED AND REMANDED


                                           SAMUEL L. LEWIS, JUDGE
                                         OPINION

       This is an appeal by petitioner/appellant, Ronald L. Davis, from the decision
of the chancery court granting the motion for summary judgment filed by
respondents/appellees, the Tennessee Department of Correction (“the Department”)
and Donal Campbell, Commissioner.               The order resulted in the dismissal of
Petitioner's petition for a declaratory judgment that the Department had incorrectly
calculated Petitioner's release eligibility date and thereby violated the Ex Post Facto
Clause of the United State Constitution. The facts out of which this matter arose are
as follows.


       In November 1982, a jury convicted Petitioner of aiding and abetting second
degree murder, and the court sentenced him to ninety-nine years. The Department
calculated Petitioner's release eligibility date to be November 2012. In March 1986,
Petitioner signed a waiver allowing him to receive sentence credits. Petitioner
received a sentence summary on 9 January 1992 which stated that his release
eligibility date was 6 July 2010. On 15 May 1992, Petitioner received a second
sentence summary which the Department generated using its new computer system.
This summary listed Petitioner's release eligibility date as 17 September 2010.


       Petitioner petitioned the Department for a declaratory order on 6 November
1995 and requested a correction of his release eligibility date. Respondents did not
reply, and Petitioner filed his petition for a declaratory judgment in the Davidson
County Chancery Court on 29 January 1996.1 Petitioner asked the chancery court for
the following relief: 1) declare the second sentence summary void and find that the
second summary violates the Ex Post Facto Clause and the Due Process Clause; 2)
order Respondents to correct the error; and 3) order a bench trial on all triable issues.


       On 4 April 1996, Respondents filed a motion to dismiss pursuant to Rule
12.02(6) of the Tennessee Rules of Civil Procedure or, in the alternative, a motion for
summary judgment and attached an affidavit. On 10 June 1996, the chancery court



       1
         The Department finally responded by letter dated February 1996. The letter stated that
the Department deemed Petitioner's request inappropriate and explained that an error had been
made on the 9 January 1992 summary.

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entered a memorandum and order granting Respondents' motion for summary
judgment. It is the opinion of this court that the chancery court thoroughly examined
the issues and came to the proper conclusion.


      On appeal, we review a decision on a motion for summary judgment as if we
were deciding the motion initially. Clifton v. Bass, 908 S.W.2d 205, 208 (Tenn. App.
1995). In other words, we too must determine whether there are any genuine issues
of material fact and whether the moving party is entitled to judgment as a matter of
law. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Moreover, this court has
stated that the moving party “must produce or point out evidence in the record which,
if uncontradicted, entitles [the moving party] to judgment as a matter of law.” Armes
v. Hulett, 843 S.W.2d 427, 429 (Tenn. App. 1992). If the non-moving party fails to
contradict the evidence or establish that the moving party is not entitled to a judgment
as a matter of law, the moving party shall prevail. See id.


      There is one possible factual dispute in this case, i.e., which sentence summary
listed the correct release eligibility date. Respondents provided evidence with their
motion that the second sentence summary listed the correct date. This evidence
consisted of an affidavit statement from Candace Whisman, Sentence Technician,
Sentence Information Services, Tennessee Department of Corrections, that the
summary dated 15 May 1992 listed the correct date and that the error was due to the
Department's old computer system. Petitioner responded by filing all of the sentence
summaries he received since 17 September 1986. These summaries clearly show that
Petitioner's release eligibility date continued to move forward each time a report was
generated until 15 May 1992. Nevertheless, it is the opinion of this court that this
evidence does not contradict the evidence of Respondent that the 15 May 1992
summary contained the correct release eligibility date. Thus, there is no factual
dispute as to which release eligibility date is correct.


      The next determination is whether Respondents were entitled to a judgment as
a matter of law. It is the opinion of this court that the chancellor correctly concluded
that the law entitled Respondents to a judgment. It is Petitioner's contention that the
recalculation of his release eligibility date violated the Ex Post Facto Clause. The
United States Constitution Provides “[n]o state shall . . . pass any . . . ex post facto

                                          -3-
Law.” U.S. Const. art. I, § 10, cl. 1. An ex post facto law is “any law 'which imposes
a punishment for an act which was not punishable at the time it was committed; or
imposes additional punishment to that then prescribed.'” Weaver v. Graham, 450
U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 22 (1981) (quoting Cummings v.
Missouri, 4 Wall. 277, 325-26, 18 L. Ed. 356 (1867)). A change in release eligibility
dates only raises an ex post facto concern if its effect is “to impose a greater or more
severe punishment than was proscribed by law at the time of the offense.” Kaylor v.
Bradley, 912 S.W.2d 728, 732 (Tenn. App. 1995). In this case, there was no “law”
to raise ex post facto concerns. Nevertheless, if we assumed that the error was the
result of the application of a law, we would still conclude that it did not violate the
Ex Post Facto Clause because it did not impose a greater or more severe punishment
than was applicable to Petitioner in 1982.


      Therefore, it results that the judgment of the chancery court is affirmed, and the
cause is remanded to the chancery court for any further necessary proceedings. Costs
on appeal are assessed against petitioner/appellant, Ronald L. Davis.




                                                _____________________________
                                                SAMUEL L. LEWIS, JUDGE

CONCUR:



_______________________________
BEN H. CANTRELL, JUDGE



_______________________________
WILLIAM C. KOCH, JR, JUDGE




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