The opinion
JONATHAN HYLER, )
)
Plaintiff/Appellant, )
) Davidson Chancery Court
) No. 96-537-I
VS. )
) Appeal No.
) 01A01-9610-CH-00482
CHARLES TRAUGHBER, Chairman, )
Tennessee Board of Paroles, et al., )
Defendants/Appellees.
)
) FILED
February 7, 1997
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
Jonathan Hyler #130123
Turney Center Prison
Route 1
Only, TN 37140-9709
ATTORNEY FOR PLAINTIFF/APPELLANT
Teresa S. Thomas #12788
Counsel for the State
404 James Robertson Parkway
Suite 2000
Nashville, TN 37243
ATTORNEY FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL., JUDGE
JONATHAN HYLER, )
)
Plaintiff/Appellant, )
) Davidson Chancery Court
) No. 96-537-I
VS. )
) Appeal No.
) 01A01-9610-CH-00482
CHARLES TRAUGHBER, Chairman, )
Tennessee Board of Paroles, et al., )
)
Defendants/Appellees. )
OPINION
The captioned petitioner has appealed from the judgment of the Trial Court
dismissing his petition for certiorari from the action of the Board of Paroles denying his
application for parole from the custody of the Department of Correction.
The petition, filed on February 20, 1996, is captioned “Petition for Cetiorari” (sic),
but its first paragraph states:
NOW COMES.....The Petitioner-Plaintiff Attorney Pro se,
a Bona Fide pauper who avers this Court has Jurisdiction to
entertain this meritious plea for Judicial Review under TCA
27-8-101 (Wallace Vs Bell 19 TAM 42-18. 9-21-1994) in
that the Said Parole Board Exceeded its Jurisdiction, and
Acted Illegally, Fraudently, and Arbitrarily in reaching its
decision to Deny this Petitioner-Plaintiff A Parole.
Petitioner-Plaintiff Appealled (sic) that decision 12-9-1995
was denied February 1st 1996. Exibit “D” (sic)
HISTORY
Petitioner-Plaintiff was convicted after a Jury Trial in
Davidson County July 1989, of one count of aggravated
rape and two counts of rape and a 30 year sentence for the
alledged (sic) aggravated rape and five years each on each
count of rape and the sentences run concurrently.
Exhibit 4 to the petition appears to be a “Request for Appeal” signed by petitioner on
December 14, 1995, and referring to a hearing held on October 30, 1995. The “Request for
Appeal” states:
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I am requesting an appeal of that hearing based on the
following:
(1) Copys (sic)of Filings in Court Submitted/Not Guilty
of Crime/A Crime that never happened....The Prejudice
of the Case/Davidson County That Trial Counsel could
not Investigate and Prepare a Defense, a Manifest of
Injustice since July 25, 1989 (2) ...The Prejudice of the
Hearing officer, as if, no more than a ...Ms. .. Feminist-
Gender who demanded after No Guilty Pleas a Guilty
Admittance before her demanded before even a parole
could be considered, And some how has a Crystal Ball,
that says that a white Female State Employee, like the
Hearing Officer would lie after Consent Sex, and a
boyfriend arrives as I left, beats her up, to compensate
Bruises, says rape.
There is no other indication of the proceeding in which the appeal was instituted.
Defendants filed a motion to dismiss stating:
Come the respondents, by and through the office of
the Tennessee Attorney General, and move the Court to
dismiss the petition in this case pursuant to Rule 12.02
of the Tennessee Rules of Civil Procedure. The petition
was not filed within the sixty-day time limit provided by
Tenn. Code Ann. § 27-9-102. The review sought by the
petition is beyond the scope of review under the common-
law writ of certiorari and the petitioner has no
constitutionally protected right to parole. The petition
should be dismissed because the petitioner has failed to
state a claim upon which relief can be granted.
In support of this motion the respondents rely upon the
affidavit of Terry Maniker, Legal Staff of the Tennessee
Board of Paroles, and the memorandum of law filed with
this motion.
The attached affidavit states:
2. I am on the legal staff of the Board of Paroles and
am one of the custodians of the files.
3. I have reviewed the file of Inmate Jonathan Avery
William Hyler/hereafter “Hyler,” inmate number
130123.
4. On July 25, 1989, a jury found Hyler guilty of
Aggravated Rape (Count 1) and Rape (counts 2
and 3).
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5. Hyler was sentenced to 30 years, 5 years, and 5
years respectively, each sentence to be served
concurrently with the other.
6. On October 30, 1995, Hearing Officer Beth
Williams conducted a parole eligibility hearing
for Hyler and her non binding recommendation
was to decline parole, based on “seriousness
of offense” and set a rehearing date in
November, 2000. (Affidavit Exhibit A, Board
Action Sheet).
7. On November 3, 1995, Tennessee Board of
Paroles Chairman, Charles Traughber cast the
final vote to accept the recommendation of the
Hearing Officer. (Exhibit A).
The “Memorandum of Law” is not included in the record on appeal. Exhibit A to the
affidavit is a copy of a “Notice of Board Action Parole Release Hearing” containing three sets
of initials dated 11-2-95, 11-3-95 and 11-3-95.
The order of the Trial Court states:
The respondent has filed a motion to dismiss this
petition for writ of certiorari due to the fact that the
petitioner failed to file this cause within sixty days
from the entry of the Board’s final decision to deny
him parole. In this cause, the Board’s final order
was issued on November 3, 1995. On January 2,
1996, the Board’s decision became final. This
petition was filed on February 20, 1996. Thus, this
petition was filed more than sixty days after the
Board’s decision.
The petitioner alleges that he is required to
exhaust administrative appeal procedures prior to
petitioning for a writ of certiorari in this Court.
More specifically, the petitioner alleges that
because he filed a timely motion to appeal with the
Board, he in fact filed within the sixty day time
limit. The petitioner is in error. The sixty-day time
period to file a writ of certiorari is not tolled by
the Board of Parole’s internal procedures. The
petitioner can pursue both remedies, but these
remedies are independent of each other.
The Court finds that the petitioner has failed to
file this petition for writ of certiorari within the
statutory time period. Thus, this Court is without
jurisdiction to review his petition. For the fore-
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going reason, the respondent’s motion is dismiss
is GRANTED. Petitioner is assessed state
litigation taxes.
The “Motion to Dismiss” refers to TRCP Rule 12.02, and states that the petition fails
to state a claim for which relief can be granted. However, the motion is supported by an
affidavit which indicates that the petition was not timely filed. It also appears that the
decision of the Trial Court was based upon the affidavit as to timeliness. The judgment
should therefore be reviewed as a summary judgment as provided by TRCP Rule 56. (See
last sentence of Rule 12.02).
A petition for certiorari must be filed within 60 days from the entry of the order or
judgment from which relief is sought. T.C.A. § 27-9-102; Thandivre v. Traughber, Tenn.
App. 1994, 909 S.W.2d 802.
The affidavit, quoted above, does not comply with TRCP Rule 56.05 and does not
state the date of entry of the final action of the Board. The date of the casting of the last vote
of a member of the Board is not necessarily the date of the final action of the Board. Due
process requires a formal order communicated to the affected party.
There is evidence that some form of administrative appeal was pursued, and the Trial
Judge held that the pursuit of an administrative appeal did not delay the running of the 60 day
limit for certiorari. This Court is unaware of any authority to this effect, and none has been
cited by appellees. This Court has held in unpublished opinions that the sixty-day period for
seeking judicial relief begins upon final action upon the administrative appeal.
The dismissal is based upon the untimeliness of the petition which is not shown by
the allegations of the petition or the evidence supporting the motion. The motion should
have been overruled to allow further proceedings to determine the date of entry of the order
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of the Board, the regulatory authorization and date and nature of the disposition of the appeal.
The Trial Court did not rule upon the sufficiency of the allegations of the complaint. Upon
remand, if it is determined that the application is timely, the Trial Court should then consider
and determine whether the petition states a claim for which relief can be granted.
The judgment of the Trial Court is reversed. Costs of this appeal are assessed to the
appellees. The cause is remanded to the Trial Court for further proceedings.
REVERSED AND REMANDED
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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