The opinion
FILED
December 3, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
RANDY HILL, )
)
Plaintiff/Appellant, )
) Davidson Chancery
VS. ) No. 97-2129-I
)
TENNESSEE BOARD OF PAROLES, ) Appeal No.
et al., ) M1997-00065-COA-R3-CV
)
Defendants/Appellees. )
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
For Plaintiff/Appellant: For Defendants/Appellees:
Randy Dale Hill Paul G. Summers
Pro Se Attorney General and Reporter
Michael E. Moore
Solicitor General
Patricia C. Kussmann
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Assistant Attorney General
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
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MEMORANDUM OPINION
This appeal involves a state prisoner’s efforts to be paroled from an eight-year
sentence for aggravated child abuse. After the Tennessee Board of Paroles declined
to parole him, the prisoner filed a certiorari petition in the Chancery Court for
Davidson County seeking judicial review of the Board’s decision. The trial court
dismissed the petition on the grounds that it was not timely filed. We affirm the trial
court in accordance with Tenn. Ct. App. R. 10(b). 1
I.
Randy Dale Hill pleaded nolo contendere to one count of aggravated child
abuse in 1995, and the Criminal Court for Dickson County sentenced him to an
eight-year term of incarceration. 2 In January 1997, a single member of the Tennessee
Board of Paroles conducted a parole hearing for Mr. Hill and recommended against
granting him parole. The full Board accepted the recommendation and determined
that it would not consider Mr. Hill for parole again until 2000. The Board later
declined to consider Mr. Hill’s appeal from this decision.
Mr. Hill received word of the Board’s final action on April 18, 1997. He
prepared a certiorari petition to seek judicial review of the Board’s decision and
handed over the petition to the prison officials for mailing on June 18, 1997. 3 The
petition was received and stamped filed by the clerk and master of the Chancery
Court for Davidson County on June 23, 1997. Thereafter, the Board moved to
dismiss the petition because it had not been filed within sixty days after the Board’s
final decision as required by Tenn. Code Ann. § 27-9-102 (1980). The trial court
granted the Board’s motion, and Mr. Hill appealed to this court.
II.
Tenn. Code Ann. § 27-9-102 requires that certiorari petitions be filed within
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sixty days from the entry of the order or judgment sought to be reviewed. This time
limit is mandatory and jurisdictional. Therefore, untimely certiorari petitions do not
confer subject matter jurisdictions on the trial court and must be dismissed. See
Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App. 1994). It follows
that the pivotal inquiry in cases of this sort is the determination of when the petition
is deemed to have been filed.
When Mr. Hill sought judicial review of the Board’s decision, a document was
deemed filed with the court only when it was filed either with the trial court clerk or
the trial judge. See Tenn. R. Civ. P. 5.06 (1996). 4 Accordingly, in order to satisfy
Tenn. Code Ann. § 27-9-102, Mr. Hill was required to file his certiorari petition with
the clerk of the trial court or the trial judge by no later than June 17, 1997 – the
sixtieth day following his notification of the Board’s final action. The clerk and
master did not receive Mr. Hill’s petition until June 23, 1997. Thus, Mr. Hill’s
petition was untimely because the clerk received it five days after Tenn. Code Ann. §
27-9-102's deadline had passed.
The Tennessee Supreme Court amended Tenn. R. Civ. P. 5.06 on July 1,
1997 to liberalize the filing rules for incarcerated pro se prisoners. From and after
that date, papers prepared by or filed on behalf of an incarcerated pro se prisoner
are deemed to have been filed with the trial court when they are “delivered to the
appropriate individual at the correctional facility.” This additional filing procedure
can avail Mr. Hill nothing in this case for two reasons. First, it cannot
constitutionally apply to Mr. Hill because the statutory deadline for filing his petition
had already expired by the time the amendment to Tenn. R. Civ. P. 5.06 became
effective. See Compton v. Tennessee Dep’t of Correction, No.
M1997-00065-COA-R3-CV, 1999 WL _____, at *___ (Tenn. Ct. App. Dec. 3,
1999). Second, Mr. Hill’s petition was still filed too late even if he could claim the
benefit of this new filing procedure. Mr. Hill tendered his petition to the prison
officials on June 18, 1997 – one day after the filing period in Tenn. Code Ann. §
27-9-102 had expired.
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Mr. Hill’s certiorari petition was filed late when measured against whatever
standards of timeliness one cares to apply. Accordingly, the trial court properly
granted the Board’s motion to dismiss.
III.
We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We also tax the costs of this appeal to Randy
Hill for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
___________________________________
HENRY F. TODD,
PRESIDING JUDGE, MIDDLE SECTION
___________________________________
BEN H. CANTRELL, JUDGE
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