# FILED
January 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk BILLY SALEEM EL-AMIN, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00361 VS. ) ) Davidson Chancery ) No. 96-2100-II DONAL CAMPBELL, COMMIS SIONER ) TENNESSEE DEPARTMENT OF ) CORRECTION, et al., ) ) Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. MCCOY, CHANCELLOR

BILLY SALEEM El-AMIN, #58400 Nashville Community

Service Center 7466 Centennial Boulevard Nashville, Tennesseee 37209- 1052 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General & Repor ter JOHN R. MILES Assistant Attorney Gener al Cordell Hull Buildi ng, Second Floor 425 5th Avenue North Nashville, Tennessee 37243-0488

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - A prison inmate convicted of two felonies alleged that the Depar tment of Correction illegally

in creased the tot al length of his s entence by treat ing a concurrent

sentence for the second offense as consecutive to the firs t one. The trial court granted the Department’s Motion for Summary Judgment, holding that the only prop er legal inte rpretati on of th e record wa s that the second se ntence wa s to b e served con secutivel

y to the fir

st. We affirm.

I.

The Petitioner is Billy

Sal eem El- Amin, formerly known as Billy Noble Forrest. He appears under both names in the record, but for the sake of clarity, we will refer to him as Mr. El-Amin thro ughout thi s opinion. Mr. El-Amin was convicted of armed robbery in 1964, and r eceived a sentence of 45 year s. On December 15, 1971, Governor

Winfield Dunn conditionally commuted his s entence to twenty

years, and he was released on parol e on December 20, 1972. On August 13, 1973, Mr. ElAmin was arr ested for armed robbery, car rying a weapon and pos session of marijuana. He was convic ted of ro bbery, and received an indeterminate sentence of five to seven years.

Mr. El-Amin appealed his conv iction to the Court o

f Crim inal Appeals. That c ourt affirmed the conviction, and iss ued a judgment so stating . Mr. El-A mi n insiststhat the wording of the 1975 Judgment Order indicated that his five to seven year sentence was to be serv ed concurrently wi

th his forty-five year sentence. He reliesparticularly upon l anguage in the or der that states that his sentence will
commence on the day

of his reception at the penitenti ary. Examination of that Order reveals that it is a printed form, wit h additio nal info rmation typed on it , which we will indicate by underli ning in the paragrap h below:

“Itis, therefore, order

ed and adjudged by this Court that the plainti

ff_ in err

or, for the offense

of robbery, be delivered to the Warden of the Penitentiary or his agentand be by him committed to the Penitentiary of the S tate of- 3 - Tennessee and there confined at hard labor for a term of not more than seven years, a nd not less than five years, commencing on the day of his reception at said Penitentiary on this charge .”
Directly below this paragraph is another, concerning the pl aintiff’s right to receive credit for

time spent in jail whi le awaitingthis appeal. Below that paragraph the following sentence i s typed in:

“Said sentence shall run at the ex piration of

presentsentence now being served by

the plaintiff in error.”

We believe that the

typed language from bot h paragra phs quote d above makes it quite clear that the court meantfor Mr. E l-Amin’s second sentence to b e consecu tive to his first. Further, such a judgment would be c onsistent with the p rovision s of Tenn. Code Ann. § 40-3620 (now Tenn. Code Ann. § 40-28-123(a), which was in effect at that time: Any p risoner w ho is convi cted in th is state o f a felo ny, co mmi tted while on parole from a stat e prison, jail or workhouse, shall serve the remainder of the sentence under which the prisoner was parol ed, or such part of the sentence, as the board may determine before the prisoner commences servingthe sentence received for the felony committed while on parole.

In the case

of Sta te v. Ve nable , 606 S.W.2d 298 (Tenn. Crim. App. 1980), the appeals court faced a situation where an appell ant challenged the use of language in a judgment identical w ith the typewritten languag e in the instant case beginning with “said sentence shall run at the ex piration of said present sentenc e . .

. .” T he court deleted the challenged language, holding that it was possibly mislea ding, and w as in any case unnecessar y, because as a matter of law , “[a] sentence for a felony committed whil e on parole from a sentence for a felony , whether
or not the se ntencin g court expl icitly s o orders or not, shall be c onsecutive to the sentence paroled upon if and when that parole is revoked.”- 4 - II.

For many years , the department officials in charge of calculating prisoner sentenc es appar ently o v erlooked the language in the judgment and the requirement

of conse cutive sentencing, for a 1992 TOMIS Offende r Sentence Letter states a total maximum sentence o f forty-five years for M r. El-Amin. The present proceedings began after he received a 1996 TOMIS Offender Sentence Letter, which stated that his maximum sentence is fifty-two years.

Mr. El-Amin’s legal arg uments on appeal are difficult to under stand, but
we cannot hold that against him, because he is a pro-se appell ant who does not claim to be knowledgeable about the law. In any case he did a serviceable j ob of explaining the situation in his orig inal hand-written complaint,and it is not difficult to under stand his reason for unhappiness: for many years he was led to believe that his sentence would expire af ter fort y-five years, and then in 1996 he learned that the Department of Correction would henceforth consider his maximum sentence to be fifty-two years.

EssentiallyMr. El-Am in is ar guing that the Department of C orrection violated his due proce ss rights by ex tending his sentence beyon d that which was imposed by

the courts. In the alternati ve he would argue tha

t once havingcalculating his sentence as forty-five years, the Department should not be permitted to increase it.

As we indicated above, we bel ieve the only reasonabl e interpretation of the applicable law, and of the judgment of the Court of Criminal Appeals, is that the appellant was sentenced to consecutive terms of confinement . The appellant’s argument then comes down to whether the Board of Correctionis bound b y its own long-standing error

in calculating or i n interpreting that sentenc e.We believe that the Department may correct an error which makes a

prisoner’s sentence shorter than the sentenc e imposed by

the court, just as it would be obligated to correct an error w hich extended a prisoner’ s sentence beyond the court’s judgment. Thetrial court was therefore correct in granting summary j udgment to the Department. Summary judg ment is appropriate when th ere is no genuine issue of material fact, and when the moving party is entitled to judgment as a matter oflaw. Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993). In the present case, the only i ssue was the proper interpretation of the 1975 Judgment Order, a questi on of law which the tri al court correctly r

esolved in favor of the appell ee.

III.

The judgment of the trial court is affirme d. Remand this cause to the ChanceryCourt of Davidson County forfurther

proceedings consistent with this opinion. Tax the costs on appeal to the appellant.

_________________________________ BEN H. CANTRELL, JUDGE CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE

IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

BILLY SALEEM EL-AMIN, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00361 VS. ) ) Davidson Chancery ) No. 96-2100-II DONAL CAMPBELL, COMMIS SIONER ) TENNESSEE DEPARTMENT OF ) Affirmed and- 6 -

CORRECTION, et al., ) Remanded ) Respondents/Appellees. )



### J U D G M E N T
This cause came on to be heard upon t he record on appeal from the Chance ryCourt of Davidson County, and briefs of the parties; upon consider ation wh ereof, th is Court is of the opinion th at in the decree of the Chancellor there is no reversible error.

In accordance with the opin ion of the Court filed herein, it is, therefore, ordered and decreed by this Cour t that the decree of the Chancellor is affirmed. The
cause is remanded to the Chancery Court of Davidson County for t he enforcement of the d ecree an d for the collectio n of the costs acc rued belo w.

Costs of this appeal are taxed against Billy Saleem El-Amin, for which executio n may issue if neces sary.

ENTER _______________________.

_________________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_________________________________ BEN H. CANTRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., JUDGE