# FILED
June 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk MICHAEL A. THOMPSON, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 97-1388-I ) VS. ) ) TENNESSEE BOARD OF PAROLES, ) Appeal No. et. al., ) 01A01-9710-CH-00572 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE IRVIN H. K ILCREASE, JR., CHANC ELLOR
Michael A. Thompson, #131076 Turney Center Industrial Prison & Far m Route 1, Unit 2B-103 Only, Tennessee 37140 PRO SE/PLAINTIFF/APPEL LANT John R. Miles, #013346 Counsel for the Sta

te Cordell Hull Building, Second Floor 425 Fifth Avenue

South Nashville, Tennessee 37243-0488 ATTORNEYS FOR DEFENDANT/APPELLEE

MODIFIED, AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

MICHAEL A. THOMPSON, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 97-1388-I ) VS. ) ) TENNESSEE BOARD OF PAROLES, ) Appeal No. et. al., ) 01A01-9710-CH-00572 ) Defendant/Appellee. )



## O P I N I O N
Michael A. Thompson, a prisoner in the custody of Tennessee Department of Correction has appealed from a summary judgment dismissing his petition for certiorari for judicial r eview of a decision of the Tennessee Board of Paroles deny ing parole.
The appellant ha

s presented five

issues as follows: A. Whether

the appellant was denied his minimal due processrights to be heard only on the sentence he was

eligible to be heard for p

arole on or from? B. Whether

the hearin g officer committed significant proceduralerro rs when he refus ed to conti nue the heari ng - after the appellant advised

him that he was not being heard on the sentence he

was eligible to be

paroled on or fro

m? C. Whether

the Board of Par

oles and its m

emb ers committed significant procedural errors when they approved and/or modified the h eari ng officer’s r ecommendations, i

n light of the fact

that the appellant had raised the issue that he was not being heard

on the sentenc e he was eligible to be paroled on or fro

m? D. Whether

the Boa rd of Paroles and/or its appointed designee, Joseph Stepbach, acted arbitrarily, illegally and fraudulently

when they refused to address and/or hear the ap pellan t’s appeal and remand his parole eligibility hearing back to the hearing officer for a decision to be recommended only on the sentence the appellant was eligible to be heard for parole on? E. Whether

the decision render

ed in Howell v. State

, 569 S.W.2d 428 (Tenn. 1978) can benefit the St ate, when parole is viola ted o n determinate consecutive sentences, to the prejudice of the parolee?-3- On October 5, 1989, appellant was convicted of two crimes,second degree murder and assault with intent to commit murder, and was sentenced to twenty ye ars confinement for the former offense and twelve and one-half years for the lat ter off ens e, t o be ser ved con secu tiv ely, that is, a total of th

irty-two an

d one-half y

ears confineme

nt.

On December 2, 1996, appellant’s application for parole was heard by a hearing off icer who recommended that

the application be denied. On December 23, 1996, the Board denied the application, and, on J anuary 17, 1997, appellant appealed to the Board on the g round that the hearing officer erred in considering his aggrega te sentenc e of

thirty-two and one-half yea rs, when he should have consid

ered only th

e twenty y

ear sentence st

ate d in the application for an “institutional parole” for the remaining twelve and one-half year s. The appeal was denied by the Board, and the prisoner instituted the present judicial review.

The Trial Judge dismissed the pe tition fo r certiorari because the Criminal Sentencing Reform Act of 198 2, T.C.A. Title 40, Chapter 35, § 40-35-112, under which appellant’s eligi bility fo r parole must be computed by adding together the elig ibility period of each consecutive sentence. This Cou rt agrees with

the Trial Court that

the act makes no distinction bet ween a “cu sto dia l pa rol e” an d ou tri ght r ele ase f rom cus tod y.
The foregoing

disposes of the fir

st four issues.

The fifth issue presents assumed future criminal acts of the appellant, and is considered moot.

The judgment of the Trial Court taxed “Lit Tax” costs

to the petitioner. An affidavit of poverty does not excuse a litigant from paying all costs. The judgment of the Trial Courtis modified to render judgment against the pe titioner for all c osts accrued in th

at Court and to award execution therefor. As modified, said judgment is affirmed. Costs of this appeal are taxed-4-

against the appellant. The cause is remanded to the Trial Court for further proceedings consistent with this opinion.
MODIFIED, AFF IRMED AND REMAND ED
.

_________________________________ HENRY F. TODD PRE SIDING JUDGE, MIDDLE SECT IO N

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M C. KOCH, JR., JUDGE