FILED

October 14, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MONTY TURNER, )

)

Petitioner/Appellant, )

) Appeal No.

) 01-A-01-9802-CH-00089

VS. )

) Davidson Chancery

) No. 97-2665-III

DONAL CAMPBELL, )

COMMISSIONER TENNESSEE )

DEPARTMENT OF CORRECTION, )

)

Respondent/Appellee. )

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

MONTY TURNER

#89388

P. O. Box 1000

Henning, Tennessee 38041-1000

Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP

Attorney General & Reporter

MARK A. HUDSON

Cordell Hull Building, Second Floor

425 Fifth Avenue North

Nashville, Tennessee 37243-0488

Attorney for Respondent/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

KOCH, J.

CAIN, J.
1Rule 10(b) of the Rules of the Court of Appeals reads as follows:

The Court, with the concurrence of all judges participating in the case, may

affirm, reverse or modify the actions of the trial court by memorandum opinion when

a form al opin ion would h ave n o pre cedential value . W hen a cas e is de cided by

memorandum opinion it shall be designated “MEMORAN DUM OPINION,” shall not be

published, and s hall not be cited or relied on for any reason in a subsequent unrelated

case.

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MEMORANDUM OPINION1

Monty Turner, an inmate in the custody of the Tennessee Department

of Correction, sought a declaratory judgment that he was entitled to mandatory parole

under Tenn. Code Ann. § 40-28-117(b)(1). The trial court dismissed the Petition for

Declaratory Judgment, holding that the mandatory parole provisions found in the

above-mentioned statute are not applicable to felons convicted after the effective date

of the Tennessee Criminal Sentencing Reform Act of 1982. We affirm the trial court.

I.

 The Tennessee Legislature created mandatory parole in 1974 by an Act

which added the following language to Tenn. Code Ann. § 40-3614: 

Every prisoner not otherwise paroled shall be mandatorily

released to and under the supervision of the Division of

Probation and Paroles subject to the following restrictions:

1. Prisoners serving sentences with maximum terms

of ten (10) years or less shall be released ninety (90) days

prior to the completion of the maximum term of sentence less

all credits granted by law.

2. Prisoners serving sentences with maximum terms

of over ten (10) years shall be released six (6) months prior

to the completion of the maximum term of sentence less all

credits granted by law.

1974 Tenn. Public Acts, ch. 624, § 5.

A further amendment to Tenn. Code Ann. § 40-3614 in 1975 altered the

qualifying language for mandatory parole from “every prisoner not otherwise paroled”
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to “every prisoner who has never been granted a parole by the Board on a particular

sentence of imprisonment.” 1975 Tenn. Public Acts, ch. 99, § 1. Tenn. Code Ann.

§ 40-3614 was later renumbered, and the mandatory parole statute is now found at

Tenn. Code Ann. § 40-28-117(b).

In 1982, the Legislature almost totally revised the laws involving

sentencing and eligibility for release and parole. Although the Tennessee Criminal

Reform Sentencing Act of 1982, Tenn. Code Ann. § 40-35-101, et seq., did not

explicitly repeal the mandatory parole statute, a 1983 amendment to Tenn. Code Ann.

§ 40-35-503 of the Act, appears to be inconsistent with the concept of mandatory

parole:

(a) The determination of whether a defendant convicted

of a felony and sentenced to one (1) year or more who has

not previously been granted release classification status

under this section should be granted such status, shall be

made by the administrative authority vested by law with

authority over pardons and paroles.

1983 Tenn. Public Acts, ch. 406, § 12.

II.

In 1989, Mr. Turner was convicted of three felonies, and received a nine

year sentence and two concurrent six year sentences. As the end of his sentence

approached, he filed a Petition for a Declaratory Order with the Department, asking

it to rule that he was entitled to be released on mandatory parole ninety days before

his sentence expired. The Department denied his petition. He then filed a Petition

for Declaratory Judgment in the Chancery Court of Davidson County.

The State filed a Motion to Dismiss the Petition, arguing that Tenn. Code

Ann. § 40-28-117(b) had been repealed by implication, upon the enactment of the

Tennessee Criminal Reform Sentencing Act of 1982. The chancery court granted the

motion, but ruled that Tenn. Code Ann. § 40-28-117(b) was still effective, but was only
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applicable to those individuals convicted prior to May 26, 1983, the effective date of

the 1982 Reform Act.

Since Mr. Turner was convicted in 1989, the court ruled that he was not

entitled to mandatory parole. The court recited that it had relied both upon a review

of the applicable statutes, and a statement by the Legislature in Tenn. Code Ann. §

40-28-117(a) that parole is a privilege, and not a right.

 Mr. Turner argues on appeal that the trial court erred in ruling that Tenn.

Code Ann. § 40-35-503 was meant to apply to anything other than the traditional type

of discretionary parole. We note, however, that the statute apparently refers to the

same class of prisoners as were dealt with under the old mandatory parole statute,

namely those who had never previously been granted parole. We are therefore

persuaded that the chancellor is correct.

III.

The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant. 

____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_____________________________

WILLIAM C. KOCH, JUDGE
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_____________________________

WILLIAM B. CAIN, JUDGE