The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 16, 2000
JAMES WARD, )
) Cecil Crowson, Jr.
Petitioner/Appellant, ) Appellate Court Clerk
) Appeal No.
) M1999-02478-COA-R3-CV
VS. )
) Davidson Chancery
) No. 98-1559-III
TENNESSEE BOARD OF )
PAROLES, )
)
Respondent/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, JUDGE
JAMES WARD
Northeast Correctional Complex
P. O. Box 5000
Mountain City, Tennessee 37683
Pro Se Petitioner/Appellant
PAUL G. SUMMERS
Attorney General and Reporter
KIMBERLY J. DEAN
Deputy Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
A prisoner claimed that the Board of Paroles had acted
unconstitutionally, illegally and capriciously by denying him parole, and
deciding not to grant him any future parole hearings until the expiration of his
sentence. The trial court dismissed his petition. We affirm the trial court.
I.
James Ward was convicted of second degree murder in 1991, and
was sentenced to thirty years imprisonment. On October 22, 1997, he received
a parole hearing. Although the record does not contain the usual statement of
parole board action, Mr. Ward claims that not only was he turned down for
parole, but that the Board of Paroles decided to deny him any further parole
hearings for the full term of his sentence.
Mr. Ward appealed to the full Board. In a letter dated February 10,
1998, the Board turned down his appeal. Among other things, the Board stated
that it had reviewed its files and the tape recording of the hearing, and that
contrary to the prisoner’s allegations, it found no significant procedural errors by
the hearing officer. The final sentence of the letter reads “[t]his disposition is
final and there is no further appeal recourse available to you on this matter
through the Tennessee Board of Paroles.”
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Despite this statement, Mr. Ward attempted to file a “Petition for a
Declaratory Order” with the Board on February 26, 1998. The Board did not
respond to the petition. On May 21, 1998, the prisoner filed a document in the
Chancery Court of Davidson County, captioned as a “PETITION FOR
JUDICIAL REVIEW and/or PETITION FOR A DECLARATORY JUDGMENT
and/or PETITION FOR COMMON LAW WRIT OF CERTIORARI”. The State
filed a motion to dismiss the petition for failure to file it within the jurisdictional
time limit. Mr. Ward filed a response in opposition to the motion. On February
5, 1999, the trial court granted the motion to dismiss. This appeal followed.
II.
Mr. Ward incorporated by reference his petition for a declaratory
order with his petition in the trial court. In these documents, he claimed first that
he was improperly sentenced because the maximum penalty for second degree
murder for Range 1 offenders is twenty-five years, not thirty years. He also
claimed that the Board acted illegally and unconstitutionally by declining to
grant him any future parole hearings. Finally, he argued that the Board failed to
give any reasons for its decision.
The trial court correctly noted that the Board of Paroles is not the
proper agency for challenging the length of a sentence, and that in any case
declaratory orders are not applicable to the Board. Tenn. Code. Ann. § 4-5-
106(c). If the complaint is that the trial court imposed a sentence that was not
authorized by law, then the proper route of appeal is to the Court of Criminal
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Appeals. If the allegation is of a sentencing miscalculation, then a petition for
declaratory order should be addressed to the Department of Correction. Tenn.
Code. Ann. § 4-5-223. If the Department refuses to grant the order, then appeal
may be had by filing a petition for declaratory judgment in the chancery court.
Tenn. Code. Ann. § 4-5-224.
Since declaratory judgment was inapplicable, the trial court treated
Mr. Ward’s petition for judicial relief as a request for a common law writ of
certiorari. Such a petition must be filed within sixty days from the order or
judgment appealed from, or the trial court loses all jurisdiction over the matter.
See Fairhaven Corporation v. Tenn. Health Facilities Commission, 566 S.W.2d
885 (Tenn. Ct. App. 1976); Thandiwe v. Traughber, 909 S.W.2d 802 (Tenn. Ct.
App. 1994).
The Board denied Mr. Ward’s appeal on February 10, 1998. He did
not file his petition until May 21, 1998, well past the sixty day deadline. Thus,
the court lacked the jurisdiction to grant the writ. Mr. Ward attempts to
circumvent the sixty day requirement by arguing that he is not appealing the
Board’s action of February 10, 1998, but its failure to respond to his “Petition for
Declaratory Order.” This argument is without merit, since the February letter
clearly stated that its decision was final, and that no further appeal to the Board
was available to the prisoner.
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III.
The order of the trial court is affirmed. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant, James Ward.
_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
____________________________
WILLIAM C. KOCH, JR., JUDGE
____________________________
WILLIAM B. CAIN, JUDGE