FILED

February 7, 1997

Cecil W. Crowson

Appellate Court Clerk

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. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

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
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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. )

O P I N I O N

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. .. FeministGender 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 commonlaw 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