FILED

April 24, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1997

STEVE L. BRYANT, ) C.C.A. NO. 01C01-9605-CR-00190

)

Appellant, )

)

) 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 Tenth Avenue South 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 Second Avenue North

Nashville, TN 37209-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

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

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

grounds that Tennessee’s sentencing laws violate the separation of powers

clause of the Tennessee Constitution and that the sentences authorized are

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

corpus relief. We affirm the judgment of the trial court.

The petition for writ of habeas corpus alleges that the Defendant is in the

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

convicted of burglary and larceny on January 19, 1989, in the Criminal Court of

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

a sentence of eighteen years to be served at thirty-five percent (35%). 

We first note that a petition for writ of habeas corpus must contain a copy

of the “legal process” upon which restraint 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 (Tenn. 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 all

respects.” State ex rel. George v. Bomar, 390 S.W.2d 232, 234 (Tenn. 1965).

It is the Appellant’s obligation to have prepared an adequate record in order to
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.

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allow meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Banes, 874

S.W.2d 73, 82 (Tenn. Crim. App. 1993). The trial court did not err when it denied

habeas corpus relief.

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

violates the separation of powers clause of the State Constitution. See Tenn.

Const. 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 Defendant therefore argues that we should strike down our

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

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

government are necessarily overlapping and interdependent. We believe this is

particularly true in our criminal justice system. See Lavon v. State, 586 S.W.2d

112, 115 (Tenn. 1979); Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 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 indeterminate

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

Nash ville, Jan. 30, 19 97); Eric C. Pendleton 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 Thom 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. No. 01C01 -960 4-CR-00147, Da vidso n Co unty (T enn. Crim .

App., Nashville, Feb. 20, 1997).

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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 sentence to expire or terminate but is a conditional release from more

restrictive confinem ent. See Howell v. State; 569 S.W.2d 428, 433 (Tenn. 1978);

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

remains in constructive custody until the expiration of the full term of his or her

sentence. Howell, 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 (Tenn. 1993); 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. App. 1995). 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.
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____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

JOE G. RILEY, JUDGE