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Tate v. Tennessee Department of Correction

Court of Appeals of Tennessee, Nashville

August 30, 2017

KEVIN TATE
v.
TENNESSEE DEPARTMENT OF CORRECTION

          Assigned on Briefs January 4, 2017

         Appeal from the Chancery Court for Davidson County No. 15-1263-IV Russell T. Perkins, Chancellor.

         Kevin Tate was convicted of a first degree murder that took place on March 22, 1993. On November 22, 1995, he was sentenced to life in prison. In the current litigation, he filed a petition for declaratory judgment asking the trial court to review his release eligibility date as calculated by the Tennessee Department of Correction (TDOC). Petitioner claimed that TDOC incorrectly calculated his release eligibility date, and, in doing so, violated his rights under the ex post facto provisions of the state and federal constitutions. The trial court found that TDOC correctly calculated his release eligibility date. As a consequence, the court dismissed the petition. We modify the judgment of the trial court by vacating the court's statement that "as Mr. Tate is serving a sentence of life for first degree murder, in no event can he become eligible for release prior to serving 25 years." In all other respects, we affirm the trial court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified; Case Remanded

          Kevin Tate, Mountain City, Tennessee, appellant, pro se.

          Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Jennifer L. Brenner, Senior Counsel, Office of the Attorney General Civil Rights and Claims Division, Nashville, Tennessee, for the appellee, Tennessee Department of Correction.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         The statutory provision pursuant to which Petitioner was sentenced is Tenn. Code Ann. § 40-35-501(g) (1990). It was amended twice during the period of time between the commission of the murder and date of sentencing. On March 22, 1993, the date on which the offense was committed, the statute provided as follows:

Release eligibility for each defendant receiving a life sentence for first degree murder shall occur after service of sixty percent (60%) of sixty (60) years less sentence credit earned and retained by the defendant.

         In an amendment to the statute that became effective on July 1, 1993, some three months after the date of the murder, the General Assembly amended this statute to provide, in pertinent part, as follows:

Release eligibility for each defendant receiving a sentence of imprisonment for life for first degree murder shall occur after service of sixty percent (60%) of sixty (60) years less sentence credits earned and retained by the defendant, but in no event shall a defendant sentenced to imprisonment for life be eligible for parole until the defendant has served a minimum of twenty-five (25) full calendar years of the sentence . . . A defendant receiving a sentence of imprisonment for life for first degree murder shall be entitled to earn and retain sentence ...

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