Bowlin v. Walkup ( 1999 )

ROGER H. BOWLIN, )
Petitioner/Appellant,
)
) Appeal No. FILED
) 01-A-01-9805-CH-00246
v. ) January 27, 1999
) Davidson Chancery
JOHN KNOX WALKUP, ) No. 98-184-IICecil W. Crowson
Appellate Court Clerk
Attorney General for the State )
of Tennessee; )
DONAL CAMPBELL, )
Commissioner of Correction for )
the State of Tennessee, )
)
Respondents/Appellee. )
)
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. McCOY, CHANCELLOR
ROGER H. BOWLIN, Pro Se
D.S.N.F. Health Center
7575 Cockrill Bend Industrial Road
Nashville, Tennessee 37209-1057
JOHN KNOX WALKUP
Attorney General and Reporter
ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee 37243
ATTORNEYS FOR RESPONDENTS/APPELLEES
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
On January 21, 1998, petitioner, an incarcerated prisoner, filed a
"petition for declaratory judgment" against the Attorney General of Tennessee
and the Tennessee Commissioner of Corrections, seeking to have Chapter 72,
section 1 of the Public Acts of 1955 previously codified as Tennessee Code
Annotated section 39-3901 declared unconstitutional.
In light of the fact that the portion of the statute of which appellant now
purports to complain was repealed by the General Assembly of Tennessee in
Chapter 192, section 4 of the Public Acts of 1973, a full five years prior to
Appellant's indictment on the offenses for which he is now incarcerated, there is
thus no justiciable controversy in this case and petitioner has neither standing nor
interest in challenging this former statute. Parks v. Alexander, 608 S.W.2d 881,
885 (Tenn.App.1980).
The Chancery Court of Davidson County dismissed the petition in this
case observing that petitioner had only two remedies for challenging his criminal
conviction in addition to a direct appeal. Such remedies are 1) a petition for a
writ of habeas corpus under Tennessee Code Annotated section 29-21-101 et seq.
and 2) a petition for post conviction relief pursuant to Tennessee Code Annotated
section 40-30-201, et seq.
The holding of the chancellor is clearly correct and since no justiciable
controversy is presented under the Declaratory Judgments Act, the dismissal by
the chancellor was clearly correct and same is affirmed. Tenn. Code Ann. § 29-
14-101-113 (1980).
Costs are assessed against petitioner, Roger H. Bowlin.
________________________________
WILLIAM B. CAIN, JUDGE
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CONCUR:
______________________________________
BEN H. CANTRELL, PRES. JUDGE, M.S.
______________________________________
PATRICIA J. COTTRELL, JUDGE
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