The opinion
TIMMY D. TOMLINSON, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9703-CH-00143
VS. )
) Davidson Chancery
) No. 96-1179-III
CHARLES TRAUGHBER, CHAIRMAN )
TENNESSEE BOARD OF PAROLES, )
ET AL., )
)
FILED
Respondents/Appellees. ) June 18, 1997
Cecil W. Crowson
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
TIMMY D. TOMLINSON, #124785
Morgan County Regional Correctional Facility
P. O. Box 2000
Wartburg, Tennessee 37887
Pro Se/Petitioner/Appellant
JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
Assistant Attorney General
Cordell Hull Building, Second Floor
425 5th Avenue North
Nashville, Tennessee 37243-0488
Attorney for Respondents/Appellees
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The Tennessee Board of Paroles declined to grant parole to an inmate
in the custody of the Department of Correction. After his administrative appeal of that
decision was turned down, the inmate petitioned the chancery court for a Writ of
Certiorari. The court dismissed his petition on the ground on untimeliness. We affirm
the dismissal, but base our decision on the alternate ground of the petitioner’s failure
to state a claim upon which relief can be granted.
I.
On October 22, 1988, Timmy Dwayne Tomlinson was convicted of two
counts of aggravated rape, assault with attempt to murder, and attempt to commit
rape. He was sentenced to forty years. His sentence was later reduced to twenty-five
years.
On August 8, 1995 a hearing officer conducted a parole hearing for Mr.
Tomlinson. The hearing officer recommended that parole be declined, based upon
high risk and seriousness of offense. The Board adopted the hearing officer’s
recommendations on August 18, 1995.
Mr. Tomlinson filed an internal appeal of the Board’s decision. His
appeal was denied on March 21, 1996. He filed his Petition for Certiorari in chancery
court on April 15, 1996, claiming that the Board had acted illegally and arbitrarily in
denying him parole without first ordering a psychological examination, and in using the
seriousness of his offense as a factor in making its decision. The trial court dismissed
the petition on the ground that it was not filed within the sixty-day jurisdictional time
limit set forth in Tenn. Code Ann. § 27-9-102. This appeal followed.
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II.
On appeal, Mr.Tomlinson concedes that his petition was filed more than
sixty days after the Board refused to grant him parole, but argues that it was not
untimely, because it was filed within sixty days of the Board’s denial of his appeal of
that refusal.
This court has previously determined in a case involving revocation of
parole, that the sixty day period within which the petitioner was required to file his
Petition for Writ of Certiorari did not begin to run until the Board’s decision became
final and he had exhausted his administrative remedies. See Jennings v. Traughber,
Appeal No. 01A01-9509-CH-00390 (filed Nashville, March 6, 1996).
However the question of the correct starting point for the sixty-day
jurisdictional time limit in cases where the Board declines to grant parole has not been
decided by this court. See Fite v. Board of Paroles, 923 S.W.2d 543 (Tenn. App.
1996). Sams v. Traughber, Appeal No. 01-A-01-9603-CH-00133 (Filed Nashville,
August 14, 1966). In the present case, we have examined the petitioner’s allegations
and we find that even if his petition were considered to be timely, he has failed to state
a claim upon which relief may be granted. See Tenn. R. Civ. P. 12.02(6).
As we have observed many times before, the Writ of Certiorari may be
granted only under very narrow conditions. It is available only where the pleadings
in the reviewing court indicate that the inferior tribunal has “exceeded its jurisdiction,
or has acted illegally, arbitrarily or fraudulently.” See Powell v. Parole Eligibility
Review Board, 879 S.W,2d 871, 873 (Tenn. App. 1994); see also Yokley v. State, 632
S.W.2d 123 (Tenn. App. 1981).
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This fundamental limitation on the scope of the writ has frequently led
petitioners to adopt the language of the above-cited cases while describing
proceedings that do not appear to suffer from any significant irregularity. The present
case appears to be one of these.
The petitioner bases his primary claim upon Tenn. Code Ann. § 40-28-
116(a)(2):
No person convicted of a sex crime shall be released on
parole unless a licensed psychiatrist or licensed psychologist
designated as a health service provider has evaluated such
an inmate and determined to a reasonable degree of medical
or psychological certainty that the inmate does not pose the
likelihood of committing sexual assaults upon release from
confinement. The evaluations shall be provided by
psychiatrists or licensed psychologists designated as health
service providers whose services are contracted for and
funded by the board or the department.
Since he apparently did not receive such an evaluation, Mr.
Tomlinson claims that that the Board acted illegally in regard to his case. It does
not appear to us, however, that the plain words of the statute or the legislative
intention behind it require that a psychological evaluation be performed before a
parole hearing may be conducted for an inmate who has been convicted as a sex
offender.
It appears that the purpose of the statute is to protect the public by
preventing the Board from releasing a convicted sex offender until the required
psychological finding is obtained, not to create a new procedural right for such
offenders. This does not mean, of course, that the Board or the Department may
withhold psychological evaluation from an inmate, and then use the absence of the
required finding as its sole reason for denying parole.
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In the present case the Board denied parole for Mr. Tomlinson
because of high risk, and because his release at this stage in his sentence would
depreciate the seriousness of his offenses. See Tenn. Code Ann. § 40-35-503.
It was not denied because he did not receive a favorable psychological evaluation.
While there may be an overlap between the psychological evaluation
that the statute requires and a finding of high risk, we note that Mr. Tomlinson was
also convicted of assault with attempt to commit murder, which is not classified as
a sexual offense, and therefore does not require the petitioner to undergo
psychological evaluation before parole may be granted or denied.
The petitioner’s second claim is a challenge to the practice of using
the seriousness of a prisoner’s offense as a reason for declining parole. We have
dealt extensively with this question in previous cases, and we have found that
even though the seriousness of a prisoner’s offense may have been factored into
the sentence he received, in appropriate cases it may also be a legitimate reason
for declining parole. See Tenn. Code Ann. § 40-35-503(a)(2); South v. Board of
Paroles, Appeal No. 01-A-01-9609-CH-00393 (Filed Nashville, December 11,
1996); Mosley v. Board of Paroles, Appeal No. 01-A-01-9604-CH-00162 (Filed
Nashville, November 1, 1996). This appears to be one such case.
III.
The action of the trial court is affirmed, but for failure to state a claim
upon which relief can be granted rather than for untimeliness. 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.
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_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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