                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs July 20, 2000

    LARRY SIMPSON v. DONAL CAMPBELL, COMMISSIONER ET AL.

                    Appeal from the Chancery Court for Davidson County
                     No. 99-1631-I   Irvin H. Kilcrease, Jr., Chancellor



                   No. M2000-00218-COA-R3-CV - Filed January 30, 2001


Larry Simpson, a prison inmate, appeals the dismissal by the trial court of his Petition for
Declaratory Judgment asserting that he was entitled to mandatory parole under former Tennessee
Code Annotated Section 40-3614 and Tennessee Code Annotated Section 40-20-115. We affirm the
trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL , J., joined.

Larry Simpson, Nashville, Tennessee, Pro Se.

Michael L. Haynie and Terri Leigh Bernal, Nashville, Tennessee, for the appellee, Donal Campbell.

                                             OPINION

         Larry Simpson was convicted of murder in the first degree in April 1980 and was sentenced
to life in prison.

         On June 8, 1999, Simpson sued for declaratory judgment asserting that he was entitled to
mandatory parole. He maintains that his case is governed by former Tennessee Code Annotated
Sections 40-3612 and 40-3614 as these statutes existed at the time of the murder in 1979 and of his
sentencing in 1980. Defendant Commissioner filed a T.R.Civ.P. Rule 12.02(6) motion to dismiss
for failure to state a claim upon which relief could be granted. The trial court granted the motion to
dismiss on January 7, 2000, and Simpson timely appealed.

       In dismissing this case, the trial court held in part:

                Petitioner contends that he is entitled to mandatory parole pursuant to the
       statute in effect at the time of his sentencing, Tenn. Code Ann. §§ 40-3612 -40-3614.
        Petitioner’s contention is without merit. Tenn. Code Ann. § 40-3614 specifically
        mandates that persons sentenced to serve a term in excess of ten (10) years are
        entitled to parole six (6) months prior to the completion of the term they were
        sentenced to. Petitioner received a determinate life sentence on April 16, 1980.
        Therefore, Petitioner’s term expires at his death.

                Furthermore, even if Petitioner was correct in his assertion that Tenn. Code
        Ann. § 40-3613 is applicable, Petitioner has not served the requisite thirty (30) years.
        Therefore, Petitioner would still not be entitled to mandatory parole.

       The Chancellor was correct in dismissing this case because former Tennessee Code
Annotated Section 40-3613 did not provide for mandatory parole after thirty (30) years of a life
sentence. See Richardson v. Tennessee Dep’t of Corrections, No. M1999-02796-COA-R3-CV, 2000
WL 696828 (Tenn. Ct. App. May 31, 2000).

       Former Tennessee Code Annotated Section 40-3613, which was in effect at the time the
Appellant committed first degree murder, provided:

        [A]ny person who shall have been convicted and sentenced to a term of
        imprisonment in the state penitentiary for a period or term of sixty-five (65) years or
        more, or life, may become eligible for parole provided such person shall have been
        confined or served a term in the state penitentiary of not less than thirty (30) full
        calender years after receiving credit for probationary parole as authorized in §40-
        3612. The granting of such parole shall be within the discretion of the parole board.
        (Emphasis added)

        Appellant has not yet served thirty (30) full calendar years and is not eligible even for
discretionary parole. See Ivey v. Meadows, 393 S.W.2d 744, 747 (Tenn. 1965); see also Doyle v.
Hampton, 340 S.W.2d 891, 893 (Tenn. 1960);

       Former Tennessee Code Annotated Section 40-3614, dealing with mandatory parole,
provided in pertinent part:

                 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.

        This code section regarding mandatory parole (now T.C.A. § 40-28-117 (1997)), is not
applicable by its terms to Simpson since the maximum length of his sentence is his entire life and
there is no way to determine “six months” prior to the completion of this maximum term. Even if
one accepts the erroneous interpretation Appellant places on Tennessee Code Annotated Section 40-
3613 that his life sentence is actually a thirty (30) year sentence, he has not yet served a term of thirty
(30) years less six (6) months. The statute governing parole “eligibility” for Simpson is former


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Tennessee Code Annotated Section 40-3613. See Byrd v. Bradley, 913 S.W.2d 181 (Tenn. Ct. App.
1995).

       Appellant is not eligible for mandatory parole and the Chancellor was correct in so holding.
Pursuant to Tennessee Code Annotated Section 40-3613, Simpson is required to serve at least thirty
(30) years of his life sentence before being eligible for discretionary parole.

        The judgment of the Chancellor is in all respects affirmed and this cause remanded to the trial
court for collection of costs with costs of appeal assessed against Appellant.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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