# FILED
June 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

JAMES A. LEMAY ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9807-CH-00397 VS. ) ) Davidson Chancery ) No. 96-3076-II STATE OF TENNESSEE, ) DEPARTMENT OF CORRECTION, ) ) Respondent/Appellant. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. MCCOY, CHANCELLOR

ROBERT J. MENDES St. Cloud Corner, Suite 575 500 Church Street Nashville, Tennessee 37219 Attorney for Petitioner/Appe llee JOHN KNOX WALKUP Attorney General and Repor ter JOHN R. MILES c/o Attorney General and R eporter 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appell ant

REVERSED AND REMAND ED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: CAIN, J. WOODALL, J. 

## O P I N I O N- 2 - The question we must decide is whether a cond itional commutation of
a prison sent

ence may be r

evoked at an

y time during the original

sentence, or can it only be revoked during the commuted sentence? The Chancery Court of Davidson County entered a declaratory j udgment that an attempted rev ocatio n after the expiration of the commuted sentence was void. We reverse.

I.

The facts of this case are fairly simple , although Mr. Lemay has h ad a colorful ca r eer in the Tennessee prison sy stem. In 1969 he received a ni nety-nine year prison sentence in Lewi s County for first degr ee murder. In the scandal-ti nged last days of the Blanton administration, Governor Blanton condition allycommuted Mr. Lemay’s sentence to th irty years. Governor A

lexander temporarily

held up the commutation issued by Governor Blanton, but, apparently conv inced thatMr. Lemay’s
case was legitimate, Gov ernor Alexander issued his own conditional commutation in Februaryof 1979. His commutation was identical to Governor Blanton’s; each contained the following conditions:

This commutat ion is granted conditioned that the aforesaid prisoner

obey all the rules

and regulations of the authority having custody of him, le ad the li fe of a good citizen, obey al l the la ws of the Nation, States, and Municipalities

and shall not be guilty of other conduct, in the opinion of the Governor, improper and illegal. In the eventany

of the foregoing conditions a re violated, the Governor, at his option (or on the recommendation of the State Board of Pardons, Paroles and Pro bati on) may issue a warrant for th e arrest and return of said pri soner to the Warden of th e Sta te Penitentia ry to undergo remainder

of said original or com mut ed sentence, as determined by

the Governor. The Governor shall be sole judge as to whether or

not any of the aforesaid conditions have been viola ted, and there sha ll be no re view of hi s action thereon by any Court whatsoever.
Almost simultaneously, Mr. Lemay, while on wor k rel ease an d employed bythe state comptroller’s office, transferre d $20,000 from the state treasury to a private ba nk accoun t. Then i n May of 19 79 he esc aped fro m custod y.- 3 - Mr. Lemay

remained free until December of 1979. In May of 1980 he
was sentenc ed to thre e ye ars of additional time on each of five counts of obtaining property under false pretenses. He also got another year for escape. In November of 1980 Governor Alexander revoked Mr. Lemay’s commutation.

I n June o f 1996 Mr. Lemay asked the Department of Correction f or a declaratory order that

he was entitledto immediate release. He arg ued that Governor Blanton’s original commutation was still i n effect, and that with all the s entence credits to which he was entitl ed, the thirty year commuted sentence had long since expired.

The Department refused to is sue a dec laratory order and Mr. Lemay filed a petition for a declaratory judgment in the Chancery Court ofDavidson C ounty. See Tenn. Code Ann. § 4-5-224. In an interlocutory order, the ch ancellor hel d that Governor

Alexander’s revoc

ation in November of 19 80 only r evoked hi s own commutation and not Governo r Bla nton’s. Therefore the sentence sti ll stood as commuted to thirty years. Appare ntly t his order prompted Governor Sundquist in December

of 19 97 to iss ue his own order specifically revoking the Blanton commutation.

The proof in the record s howed tha t with all credits a commuted thirty year sentence expired onJanuary16, 1986. This brings us t o the ultimate question in this case: Is a revoc

ation within the term of t he origina l sentenc e effec tive after the expiration of

a commuted sentence? The chancellor in her final order held that ou r SupremeCourt had ruled that a revocation of a commuted sentence must take place before the commuted sentence expires. See Carroll v. Raney

, 953 S.W.2d 657 (Tenn. 1997). Therefore, the chancellor held that Governor Sund quist’s revocatio n came too late, and that Mr. Lemay was being illegally held.

II.- 4 - The Governor’s power to grant “reprieves and pardons” has been well recognizedin many appellate court dec isions. See Carroll v. Raney , 953 S.W.2d 657 (Tenn. 1997); Ricks v. State , 882 S.W.2d 387 (Tenn. Cr. App. 1994); White v. State , 717 S.W.2d 309 (Tenn. Cr. App. 1986). It wil l suffice to say here that the power encompasses the right to co mmute a sen tence, Ricks v. State, 882 S.W.2d 387 (Tenn. Cr. App. 1994) and to attach conditions or restrictions to a commuted sente nce “thatare reasonable, legal, an d possible for the defendant to perfo rm.” Carroll v. Raney , 953 S.W.2d at 660. The conditions “must app ear on the f ace of the paper, and must be clear and specific.” Id. If the prisoner violates the conditions, the commutation may be revoked. White v. State , 717 S.W.2d 309 (Tenn. Cr . App. 1986).

Mr. Lemay argues that Gover nor Blanton’s commutation wa s unconditional because the conditions were on the back of the form, and because the conditionswere not c lear an d specific. We reject both arguments. The cond itions appear on the form just above the commutation language itself and on the same page containing the Governor’s sig nature. In order to get to t he commu tation one must pass over the conditions. Ther efore, the conditions ar e on the face of the sheet. Theyare also identical to th e conditions imposed on Mr. White , which the court approved in White v. State , 717 S.W.2d 309 (Te nn. Cr. App. 1986).

Passing o n t o the real question, we think the answer lies in understanding the nature of the Governor’s power . It is clear that the Governor’s power to grant reprieves

and pardons is limited only by the lang uag e in the constitution. Carroll v. Raney , 953 S.W.2d 657 (Tenn. 1997). In granting a pardo n the Governor has the rig ht to place conditions on the g rant. State ex rel. Bedford v. McCorkle , 40 S.W.2d 1015 (Tenn. 1931). When the prisoner accepts the pardon he accepts it subject to all of its t erms and conditions. State ex rel. Rowe v. Connors , 61- 5 -

S.W .2d 4 71 (Tenn. 1933). The conditions ar e conditions subsequent, maki ng the pardon null and void if the conditions are violated. 59 Am.Jur. 2d Pardon and Parole § 2.

When a prisoner receives a pardon, there is no longer any sentence t o be served. Yet, no one seriously questions the power of the Governor to revoke the pardon when th e pri soner violates the conditions. We conclude, therefore, that a sentence remaining to be served does not have any bearing on the Governor ’s power of revocation.

As we have noted the Governor’s power t o commute a sentence is der i ved from the power to issue “reprieves and pardons.” T ENN C ONST . art. III, § 6; Ricks v. State , 8 82 S.W.2d 387 (Tenn. Cr. App. 1994). Therefore, the power is as comple te and unfettered in this area as in the case of pardo ns. We think it must follow that the Governor m ay revoke a commuted sentence at any time before the original sentence expires.

The onlycase directly on point so held. In White v. State , 717 S.W.2d 309 (Tenn. Cr. App. 1986), the prisoner’s ori ginal ninety-nine y ear sentence was commuted to “time served” on the condition that Mr. White “obey al l rules . . .”, etc. When Mr. White subseque nt ly committed other crimes , the governor rev oked the commutation, and the Court of Criminal Appeal s held that the governor ’s power to revoke the commutation lasted until the ninety-nine y ear sentence expired.

Mr. White relied (as Mr. Lemay does) on Rowell v. Dutton , 688 S.W.2d 474 (Tenn. Cr. App. 1985) in which an original sentence of twenty

years imposed in 1974 was later commuted to ten to twenty years. I n 1983 Mr. Rowell w as convicted of other crimes a nd the parole board recommended that th e governor revoke the commutation. The governor signed the revocation on Nov emb er 22, 1983, but the- 6 -

court found that the original twenty year sentence (when given all the available credits) expired on November 15, 1983. Since th e original sentence had ex pired, the c our t held that the governor no lo nger had the power

to recommit the prisoner by revoking the commutation. As the White court recognized, Rowell dealt with an expir

ed original sentence not an expired commuted sentence. A commuted sentence with conditions attached may be revoked at any time during the original sentence. Otherwise, in White when the original s

entence was commutedto time served , the conditions would have been meaningless and the prisoner would have been free of any restraints.

Mr. Lemay also relies on a sentence in the recent Supreme Court case of Carroll v. Raney

, 953 S.W.2d 657 (Tenn. 1997). The Court said, “Upon a finding that a condition has been viol ated, the commuted sentence may be revoked by the Governor, provided th at the s entence has not exp ired.” 95 3 S.W .2d at 66 0. If we
were to parse the sentence in isolation, we might conclude that the second use of the word “sentence” referred back to “commuted sentence” usedearlier. But, the Court cites Rowell v. Dutton , 688 S.W.2d 474 (Tenn. Cr. App. 1985) for the s tatement, and
we have already noted that the “sentence” that had expir ed in Rowell

was the original sentence. We do not think the Supreme Court intended to make a major pronoun cement o n the gover nor’s par doning po wer in such a n off-h and way.

The judgment of the trial court is reversed and the cause is remanded for any further proceedings necessary. Tax the cos ts on appeal to the appellee.

______ ______________________ _ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:- 7 -

_____________________________ WILLIAM B. CAIN, JUDGE

_____________________________ THOMAS T. WOODALL, JUDGE SITTING BY DESIGNATION