FILED

September 29, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

 FOR PUBLICATION

WILLIAM D. CARROLL, )

) Filed: September 29, 1997

Appellant, )

) LAUDERDALE LAW

)

Vs. )

) HON. JOSEPH H. WALKER,

) JUDGE

FRED RANEY, WARDEN, )

)

Appellee. ) No. 02-S-01-9610-CC-00086

For Appellant: For Appellee:

Julie K. Pillow John Knox Walkup

Assistant Public Defender Attorney General & Reporter

Covington, Tennessee

Michael E. Moore

Gary F. Antrican Solicitor General

Pubic Defender

Covington, Tennessee Gordon W. Smith

Associate Solicitor General

Nashville, Tennessee

O P I N I O N

AFFIRMED ANDERSON, C.J.
1

 The punishm ents for rape included death by electrocution, life imprisonment, or a

determinate sentence of at least ten years. Tenn. Code Ann. § 39-370 2 (1955 & Supp. 196 1).

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The defendant filed a writ of habeas corpus seeking his freedom from

prison on the grounds his commuted sentence had expired prior to being

revoked by the Governor. The trial court found that the commuted sentence

from life to “22 years to life” had expired before the Governor’s revocation and

granted the defendant’s petition for the writ of habeas corpus. The Court of

Criminal Appeals reversed, holding that the Governor’s commutation was

conditional and that the Governor had the authority to revoke the commutation at

any time throughout the defendant’s life. 

Although we disagree that the commutation contained an express

condition, we conclude the Governor had the authority to first commute the

sentence to an indeterminate term of “22 years to life,” and also to revoke the

commutation at any time during the defendant’s life because the defendant was

considered in legal custody until his life sentence expired at his death. 

Accordingly, we affirm the Court of Criminal Appeals’ judgment based on the

separate rationale developed below.

BACKGROUND

In May of 1962, the defendant, William D. Carroll, was convicted of rape

and sentenced to death, which was then an available punishment for the

offense.1 In 1964, Governor Frank Clement commuted Carroll’s sentence to a

term of life imprisonment. In November of 1972, Carroll’s life sentence was

again commuted by Governor Winfield Dunn to a term of “22 years to life.” The

defendant was released on parole in December of 1972, but convicted the

following year of robbery with a deadly weapon. In March of 1974, Governor
2

 The re med y of habea s corpu s is the pro per proc edure th rough w hich to allege that a

senten ce of im prisonm ent has expired. Arche r v. State, 851 S.W .2d 157 (Tenn . 1993); Ricks v.

State, 882 S.W .2d 387 (Tenn. Crim . App. 1994).

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Dunn revoked the commuted sentence and reinstated a term of life

imprisonment. 

In 1992, the defendant, who was then incarcerated at Fort Pillow prison, 

filed a petition for the writ of habeas corpus, alleging that the commuted

sentence of “22 years to life” had expired in 1973, or prior to the governor’s

purported revocation.2

 Although the trial court initially denied relief, the Court of

Criminal Appeals remanded for a hearing to determine whether and when the

commuted sentence had expired. Carroll v. Raney, 868 S.W.2d 721 (Tenn.

Crim. App. 1993). 

On remand, the trial court found that the commuted sentence was

unconditional and that, applying applicable sentencing credits, the defendant

Carroll had served a 22-year sentence prior to the Governor’s revocation. The

Court of Criminal Appeals reversed, holding that the commutation was

conditional and that the Governor had authority to revoke the sentence at any

time during the entire term. We then granted the application for permission to

appeal.

GOVERNOR’S POWER OF COMMUTATION

We first turn to the Constitution to determine the extent of the Governor’s

power to commute sentences. The Tennessee Constitution, art. III, § 6, states

the Governor “shall have the power to grant reprieves and pardons, after

conviction, except in cases of impeachment.” As this Court has recognized, the

power to grant reprieves and pardons “embraces the right to commute a
3 Similarly, the statutory provisions governing parole, Tenn. Code Ann. § 40-28-101--127

(1990 & Supp. 1996), specifically provide that nothing contained therein “shall be construed in any

way as intended to modify or abridge the pardoning power of the governor.” Tenn. Code Ann.

§ 40-28-128 (1990).

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sentence, that is, to impose a lesser or shorter sentence for the sentence

imposed following a defendant’s conviction.” Bowen v. State, 488 S.W.2d 373,

375 (Tenn. 1972); see also Ricks v. State, 882 S.W.2d at 391. The commuted

sentence to a lesser term stands as if it had been the judgment imposed in the

first instance. Bowen, 488 S.W.2d at 375.

The Governor’s power to grant reprieves, pardons and commutations is

limited only by the language in the Constitution. State ex rel. Bedford v.

McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1016 (1931). Thus, while the power

is also recognized by statute, see, Tenn. Code Ann. § 40-27-101 (1990), this

Court has observed:

The vestiture of the power to grant reprieves and pardons in the

chief executive is exclusive of all other departments of the state,

and the Legislature cannot, directly or indirectly, take it from his

control, and vest it in others, or authorize or require it to be

exercised by any other officer or authority. It is a power and a duty

intrusted to his judgment and discretion, which cannot be interfered

with, and of which he cannot be relieved.

State ex rel. Rowe v. Connor, 166 Tenn. 393, 61 S.W.2d 471, 472 (1933). More

recently, the Court of Criminal Appeals has declared “neither the legislature nor

the judicial branch of government has the authority to regulate or control the

governor’s power to commute a sentence.” Ricks v. State, 882 S.W.2d at 391.3 

The Governor also has the authority to attach conditions or restrictions to

a commuted sentence that are reasonable, legal, and possible for the defendant

to perform. See, e.g., McCorkle, 40 S.W.2d at 1016 (“obey the law in every way,
4

 Now c odified in T enn. Co de Ann . § 40-20 -107 (19 90), the de termin ate/indete rmina te

distinction applied to offenses committed before July 1, 1982, when sentences were determined

by the jury. When a defendant was convicted of a felony, the jury was to impose a minimum and

maximum term for the offense, i.e., an indeterminate sentence; for the most serious crimes, such

as rape, the jury was to impose only a determinative sentence. The distinction primarily pertained

to a defendant’s parole eligibility date. Tenn. Code Ann. § 40-3612 (1975)[Now Tenn. Code Ann.

§ 40-28-115 (1990)]. Sentencing by jury, and the determinate/indeterminate distinction, has been

largely abolish ed in the pr esent s entenc ing act. Te nn. Cod e Ann. § 40-35-1 01, et seq. (1990 &

Supp. 1996).

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lead the life of a good citizen, and refrain from the use, sale, manufacture or

possession . . . of intoxicants.”); Ricks v. State, 882 S.W.2d at 393 (“parole

and/or commutation supervision by the Bd. of Paroles until the expiration of his

original sentence”). Upon a finding that a condition has been violated, the

commuted sentence may be revoked by the Governor, provided that the

sentence has not expired. See Rowell v. Dutton, 688 S.W.2d 474, 477 (Tenn.

Crim. App. 1985).

 In this case, the defendant’s argument is two-fold. First, he argues that

the commuted sentence of “22 years to life” must be interpreted as a 22-year

determinate sentence because, at the time of the offense and at the time of the

commutation, an indeterminate sentence could not be imposed for rape. See

Tenn. Code Ann. § 40-2707 (1975); Franks v. State, 187 Tenn. 174, 213 S.W.2d

105, 109 (1948).4

 Second, he contends that the unconditional commutation of

22 years expired prior to the Governor’s revocation of it. The trial court agreed. 

The Court of Criminal Appeals, however, interpreted the commuted sentence as

conditional, while conceding that the “22 years to life” was an indeterminate

sentence. Specifically relying on the “to life” language, the court concluded that

the Governor had the authority to revoke the commutation of the defendant’s

sentence throughout the remainder of the defendant’s life. 
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We agree with this result but not the reasoning. The majority view with

regard to conditional pardons is that “the conditions, to be operative, must

appear on the face of the paper, and must be clear and specific.” 59 Am. Jur.

2d, Pardon and Parole, §63 at 52 (2d ed. 1987); 67A C.J.S., Pardon and Parole,

§37 at 49 (1978 & Supp. 1997); see also Connors, 61 S.W.2d at 473 (“by apt

language in the instrument itself, the Governor . . . can stipulate that he shall

have exclusive power to determine whether the conditions of a pardon issued

have been broken.”). The trial court found, and both parties on appeal now

recognize, that the Governor’s commutation in this case did not contain an

express condition. Although it is arguable that the words of the commuted

sentence “to life” imply a condition, we believe this approach is less persuasive

than the rationale we have chosen. Compare Ricks, 882 S.W.2d at 393, n. 23

(defendant “will be under parole and/or commutation supervision by the Board of

Paroles until the expiration of his original sentence.”).

In our view, the Governor had the constitutional authority pursuant to

article III, § 6 of the Tennessee Constitution to grant a commuted sentence of

“22 years to life,” even if the applicable statutes precluded the imposition of an

indeterminate sentence for the offense of rape. For example, in State v. Fields,

925 S.W.2d 561 (Tenn. Crim. App. 1996), the Governor commuted the

defendant’s death sentence to a term of ninety-nine years. The defendant later

sought post-conviction relief on the basis that the only other legally effective

sentence for first-degree murder at the time of his offense was life imprisonment,

and not a term of ninety-nine years. The Court of Criminal Appeals rejected the

assertion that the commuted sentence was illegal:
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[T]he only sentence that could legally have been ordered by a

judge or jury was life imprisonment. We conclude, however, that

these cases and the law set forth therein do not and cannot restrict

the constitutional authority of the Governor to commute a

defendant’s sentence to a term less than life. . . .

Id. at 563.

Other state courts have reached similar conclusions. The Maine Supreme

Court did so in Baston v. Robbins, 135 A.2d 279 (Me. 1957). There, the

Governor commuted the defendant’s eight-year sentence for rape to a term from 

four to eight years. The defendant was paroled, but when he violated a condition

of parole, he was ordered to complete his commuted sentence. He sought

habeas corpus relief, alleging that the commutation was an indeterminate

sentence in violation of Maine’s statutory sentencing law. The Maine Supreme

Court, after first noting that the commuted term was a reduction of the original

sentence, held:

[A]uthority of the Governor and Council is derived from the

Constitution and it may commute the sentence with such

restrictions as may be deemed proper. If the restrictions and

limitations imposed are in conflict with the provisions of any statute,

then such statute does not control . . . .

Id. at 281. Likewise, in Green v. Gordon, 246 P.2d 38 (Cal.), cert. denied, 344

U.S. 886 (1952), the defendant argued that the Governor could not commute his

death sentence to life without the possibility of parole because the only

punishments established for the offense of first-degree murder by the legislature

were death and life with the possibility of parole. The California Supreme Court

responded that:

The penalties prescribed by statute . . . are the ones to be imposed

by the trial court upon conviction of murder, and the statutory
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provisions relating to such penalties and the right to parole do not

purport to limit the governor’s power to impose conditions upon a

commutation of sentence.

Id. at 39; see also State v. Hunter, 447 A.2d 797 (Me. 1982); Schick v. Reed,

483 F.2d 1266 (D.C. Cir. 1973).

Accordingly, we conclude that the commuted sentence of 22 years to life

imposed by the Governor was a proper exercise of his authority under article III,

§ 6 of the Tennessee Constitution, even if considered an indeterminate term that

could not have been imposed under the statutes by the judge or jury when the

defendant was convicted. It was a lesser sentence in that it provided a minimum

term by which the defendant could be released earlier than he would have been

had his sentence remained life imprisonment. Yet, at the same time, the

defendant was considered in legal custody until the expiration of the maximum

sentence. See State ex rel. Saunders v. Robinson, 190 Tenn. 101, 103, 228

S.W.2d 75 (1950) (a prisoner serving an indeterminate sentence, even if

released on parole, is considered in legal custody until the expiration of the

maximum sentence). Because a life sentence does not expire until a

defendant’s death, the defendant was still serving the sentence when the

commutation was revoked by the Governor in 1974. See Doyle v. Hampton, 207

Tenn. 399, 340 S.W.2d 891 (1960). Therefore, the defendant is not entitled to

habeas corpus relief.

CONCLUSION

We have determined that the commuted sentence of 22 years to life was

a proper exercise of the Governor’s constitutional authority, and that the

defendant was still serving this sentence when the commutation was revoked by
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the Governor in 1974. Accordingly, the defendant was not entitled to habeas

corpus relief, and the judgment of the Court of Criminal Appeals is affirmed.

Costs of this appeal are taxed to the appellant, for which execution may

issue if necessary.

_________________________________

E. RILEY ANDERSON, CHIEF JUSTICE

Concur: 

Drowota, Reid, Birch, and Holder, JJ.