The Honorable Hamilton v. Gayden, Jr., Chancellor

EDDIE JOHNSON, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9605-CV-00213

v. )

)

TENNESSEE BOARD OF PAROLES, ) Davidson Circuit

) No. 95C-1607

Respondent/Appellee. )

FILED

COURT OF APPEALS OF TENNESSEE August 30, 1996

MIDDLE SECTION AT NASHVILLE Cecil W. Crowson

Appellate Court Clerk

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON V. GAYDEN, JR., CHANCELLOR

EDDIE JOHNSON, Pro Se

103176 - L.C.R.C.F.

Route 1, Box 330

Tiptonville, Tennessee 38079-9775

CHARLES W. BURSON

Attorney General and Reporter

PATRICIA C. KUSSMANN

Assistant Attorney General

Civil Rights and Claims Division

404 James Robertson Parkway

Suite 2000

Nashville, Tennessee 37243

ATTORNEYS FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE

1

MEMORANDUM OPINION

This is an appeal by petitioner/appellant, Eddie Johnson,

from a decision of the chancery court dismissing his petition for

writ of certiorari.

Petitioner is an inmate incarcerated at the Lake County

Regional Facility. On 1 July 1993, the Board of Paroles ("the

Board") granted him parole and then rescinded the parole on 14

October 1993. On 6 December 1994, a parole hearing officer

conducted a hearing to determine whether the Board should release

petitioner on parole. The hearing officer recommended releasing

petitioner. The Board did not accept the hearing officer's

recommendation and denied petitioner's parole because of the

seriousness of his offense and his high risk. Petitioner requested

an appeal. The Board informed petitioner that it had denied his

request for an appeal in a letter dated 3 February 1995.

On 19 May 1995, petitioner filed a petition seeking a writ

of certiorari to review the Board's decision which denied him

release on parole. The Board filed a motion to dismiss the

petition on 5 July 1995. The motion alleged that the trial court

did not have jurisdiction to hear the matter because the petition

was not timely filed pursuant to Tennessee Code Annotated section

27-9-102.

On 31 August 1995, the trial court dismissed the petition

finding that petitioner's petition for writ of certiorari was not

1

Court of Appeals Rule 10(b):

The Court, with the concurrence of all judges participating in the

case, may affirm, reverse or modify the actions of the trial court

by memorandum opinion when a formal opinion would have no

precedential value. When a case is decided by memorandum opinion

it shall be designated "MEMORANDUM OPINION," shall not be

published, and shall not be cited or relied on for any reason in a

subsequent unrelated case.

2

timely filed. Petitioner filed a timely notice of appeal as to the

trial court's decision. After reviewing the record, we are of the

opinion that the trial court correctly found that the petition for

common law writ of certiorari was not timely filed.

Tennessee Code Annotated section 27-9-102 provides that the

petition for writ of certiorari must be filed within sixty days

from the entry of the order or judgment complained of. This sixty

day time limit is a jurisdictional prerequisite and applies both to

common law and statutory writs of certiorari. Thandiwe v.

Traughber, 909 S.W.2d 802, 804 (Tenn. App. 1994). The failure of

one to file within the statutory time limit results in the

administrative board's decision becoming final and in the trial

court losing jurisdiction. Id.

Petitioner complains of two Board decisions in this case.

These are the recision of his parole in 1993 and the denial of

parole in 1995. Petitioner's claim as to the recision of his

parole is clearly time barred. Petitioner filed the petition for

writ of certiorari nearly two years after the Board decided to

rescind petitioner's parole.

The viability of petitioner's second claim is more difficult

to determine. In Jennings v. Traughber, No. 01A01-9509-CH-00390,

1996 WL 93763 (Tenn. App. 1996), this court addressed a similar

issue. In that case, this court determined that the decision of

the Board was not final until the Board informed the inmate that it

had denied his request for an appeal. Jennings, 1996 WL 93763, at

* 3. In Jennings, as in the present case, the Board informed the

inmate by letter. This court used the date of the letter as the

date of the entry of the Board's order. Id.

3

Applying this analysis to the present case, petitioner

received the letter from the Board informing him that it had

decided to deny his request for an appeal on 3 February 1995.

Thus, the date from which the sixty days began to run was 3

February 1995. Petitioner filed his writ on 19 May 1995, more than

sixty days after the entry of the Board's order. Petitioner's

petition was not timely filed and the trial court correctly found

that it did not have jurisdiction to hear the petition. The trial

court properly dismissed the petition.

The judgment of the trial court is affirmed with costs

assessed to the petitioner/appellant, Eddie Johnson. The cause is

remanded to the trial court for any further necessary proceedings.

__________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________

HENRY F. TODD, P.J., M.S.

_________________________________

BEN H. CANTRELL, JUDGE

4