# FILED
October 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF A PPEALS 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 CHAN CERY COUR T OF DAVIDSO N 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 & Repor ter MARK A. HUDSON Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: KOCH, J. CAIN, J.1 Rule 10(b) of the Rules of t he Court of Appeal s reads as follows: The Court, wi th the concurr ence of alljudges parti cipati ng in the case,may affirm, reverse or modify the acti ons of the trial cour t by memo ran dum opinion when a form al opin ion w ould h ave n o pre ced entia l value . W hen a cas e is de cid ed b y memorandum opinion i t shallbe designated “MEMORAN DUM OPINION,” shall not be published, and s hall not be cit ed or reli ed on for any reason in a subsequent unrelated case. - 2 -



## MEMORAND UM OPINION 1

Monty Turner, an inmate in the custody of the Tennessee Department of Correction, sought a dec laratory judgment

that he was entitled

to mandatory parole under Tenn. Code Ann. § 40-28-117(b)(1). The trial court dismissed the Petition for DeclaratoryJudgment, holdi ng that the manda tory pa role pr

ovisi ons fo und i n the above-mentioned statute are not applicable to felons convicted after the effective date of the Tennessee CriminalSentencing Reform Act of 1982. We affirm the trial court.

I.
The Tennessee Legislature created manda tory parole in 1974 by an Act which added the followin g language to Tenn. Code Ann. § 40-3614:

Every prisoner not otherwi se par oled shall be mandatorily released to and under the supervisi on of the Division of Probation and Paroles subject to the following restrictions: 1. Prisoners serving

sentences w

ith maximum terms of ten (10 ) ye ars or less shall be re leased n inety (90) days prior to the completion of the maximum term of sentence less all credit s granted by law. 2. Prisoners serving sentences with maxi mum terms of over ten (10) year

s shall be released six

(6) month s pr ior to the completi on of the maxi mum term of sente nce less all credits gra nted by la w. 1974 Tenn. Public Acts, ch. 624, § 5.

A further amendment to Tenn. Code Ann. § 40-3614in 1975 altered the qualifyinglanguage for mandatory par ole from “every

prisoner not otherwi se paroled”- 3 -

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 A nn. § 40-3614 was later renumbered, and the mandatory parole statute is now foundat Tenn. Code Ann. § 40-28-117(b).

I n 1982 , the Legislature almost t otally revised the laws involvi ng sentencing an d eligib ility for release and par ole. Although the Tennessee Cr iminal Reform Sentencing Act o f 1982, Ten n. Code Ann. § 4 0-35-101, et se q. , did no t explicitly repeal the mandatory parole statute,a 1983 amendment to Tenn. Code Ann. § 40-35-503 of the Act, appea rs to be inconsistent with the concept of mandatory parole: (a) The determination of whether a de fe ndant convicted of a felony

and sen tenced to one (1) year or more who has not previous ly been granted release class ification status under this section should be gr ant ed such status, shall be made by the administrativ e authority vested

by law with authority over pardons and paroles. 1983 Tenn. Public Acts, ch. 406, § 12.

II.

In 1989, Mr. Turner was c onvicted of three felonies, and received a nine year sentence and two concurrent six year se ntences. As the end of his sentence approached, he filed a Petition for a Declarator y Order withthe Department, asking it to rule that hewas entitled to be released on mandatory parole ninety days before his se ntence expired. The Department denied his petition. He then filed a Pe titio n for Decla ratory Jud gment in t he Chanc ery Court o f Davidso n 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 ena ctment oft he 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- 4 -

applicable to those individuals convicted prior to M ay 26, 1983, the effective date of the 1982 Reform Act.

Since Mr. Turner was conv icted in 1989, the court rul ed that he was not entitled to mandatory parole. The court recited that it had relied both upon a rev iew of the applicable statutes, and a stateme nt 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 ty pe of discretiona ry parole. We note, however, tha t the statute apparently r efers to the
same class of prisoners as w ere dealt with under the o l d mandatory parole statute,
n amely those who had never previously been granted parole. We are theref ore persuaded that the chancellor i s correct.

III.

T he judgment of the trial court is affirmed. Remand th is c ause to th e ChanceryCourt of David son 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- 5 -

_____________________________ WILLIAM B. CAIN, JUDGE