# FILED
February

7, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JONATHAN HYLER, ) ) Plaintiff/Appellant, ) ) Davidson Chancery Court ) No. 96-537-I VS. ) ) Appeal No. ) 01A01-9610-CH-00482 CHARLES TRA UGHBER, C hairman , ) Tennessee Board of Paroles, et al., ) ) Defendants

/Appellees. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM TH

E CHANCER

Y COURT F OR DAVID SON COUNTY AT NASHVILL E, TENNESSEE HONORABLE IR

VIN H. KI

LCREASE, JR ., CHANCE LLOR

Jonathan Hyler #130123 Turney Center

Prison Route 1 Only, TN 37140-9709 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT

Teresa S. Thomas #12788 Counsel fo

r the State 404 James Robertson Parkway Suite 2000 Nashville, TN 37243 ATTORNEY FOR DEFENDANTS/APPEL LEES


### REVERSED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL ., JUDGE-2-

JONATHAN HYLER, ) ) Plaintiff/Appellant, ) ) Davidson Chancery Court ) No. 96-537-I VS. ) ) Appeal No. ) 01A01-9610-CH-00482 CHARLES TRA UGHBER, C hairman , ) Tennessee Board of Paroles, et al., ) ) Defendants

/Appellees. )



### O P I N I O N
The captioned petitioner has appealed from the judg ment of the Trial Court dismissing

his petitio n for ce

rtiorar i from the action of the Boa rd of Par oles deny ing 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 fir st parag

raph sta tes: NOW COMES .....The Petitioner-Plaintiff Attorney Pro se , a Bona Fide pauper who ave rs this Court has Jurisdiction to enterta in this mer

itious plea

for Judicia

l Review u

nder 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 I llegally, Fraude

ntly , and Arb itrarily

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 aggra vated rape and two counts of rape and a 30 y ear sentence for the alledged (sic) agg

ravated rape and five y

ears each on each co un t o f r ap e a nd th e s en te nc es ru n c on cu rr en tl y. Exhibit 4 to the petition appears to be a “Request for Appeal” signed by petitioner on December 14, 1995, and referr ing to a hearing held on October 30, 1995. The “Request for Appeal”states:-3- I am requesting a

n appeal of that hearing based on the follo wing: (1) Copy s (sic)of

Filingsin Court Sub mitted/Not Guilty of Crime/A Crime that never happened....The Prejudice of the Case/Davidson County That Tr ial Counsel could not Investigate and Pre

pare a Defense, a Manife st of Injustice since July

25, 1989 (2) ...The Prejudice of the Hearing office r, as if, no more th an a ...M s. .. FeministGe nd er wh o d em an de d a ft er No Gu il ty P le as a G ui lt y Admittance before her demanded bef ore even a parole could be considered, And some how has a Cry stal Ball, that says that a white F

emale State Employee , like the Hearing Officer would lie a fter Consent Sex, and a boyfriend a

rrives as I left, bea

ts her up, to compensate Bruises, say s rape.

There is no other indication of the proceeding in which the appeal was instituted.

Defend ants filed a moti on to dism iss s tati ng: Come the respondents, by a nd through the office of the Tennessee A

ttorney Genera l, and move

the Court t

o 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 rig ht to parole. The petition should be dismissed because the petitioner has failed to state a claim upon which relief can be g ranted. In support of this motion the respondents rely upon the affidavit of Terry

Maniker, Leg al Staff of the Tennessee Board of Paroles, and the memorandum of law f iled with this motion.

The atta ched af fidavit st ates: 2. I am on the lega

l staff of the Board of Paroles and am one of the custo dians of t

he files. 3. I have review ed the file of Inmate Jonathan Aver y William Hyler/hereafte

r “Hyler ,” inmate number 130123. 4. On July 25, 1989, a jury found Hyler g

uilty of Aggr avated R ape (Cou

nt 1) and R ape (co

unts 2 and 3).-4- 5. Hyler wa s sentenced to 30 ye ars, 5 yea rs, and 5 years r espectively, e ach sentence to be served concurrently

with the other. 6. On October 30, 1995, Hearing Off icer Beth Will iams c onduc ted a p arole e ligib ilit y hearing for Hyler and her non binding recommendation was to de cline pa

role, ba sed on “se

riousnes s of offense” and set a rehea ring date in November, 2000. (Affidavit Exhibit A, Board Action Sheet). 7. On November 3, 1995, Tennessee Boar d of Paroles Chairman, Charles Traughber c ast the final vote to accept the recommendation of the Hearing Officer. (E

xhibit A).

The “Memorandum of La w” is not included in the record on appeal. Exhibit A to the affida vit is a copy of

a “Notic e of Boa

rd Action Parole Re

lease He aring”

containi ng thre e sets of initials dated 11-2-95, 11-3-95 and 11-3-95.

The orde r of the T rial Cour t states: The resp ondent ha s filed a m otion to dism

iss this petition for writ of certiorari due to the fact that the petitione r failed to file thi s cause within sixty day s from the entry of

the Board’s final decision to deny him parole. In this cause, the B oard’s final order was issued on November 3, 1995. On January 2, 1996, the

Board’ s decisio n became final. Th

is petition w as filed o n Febru ary 20, 1996. T

hus, this petition was filed more than sixty day s 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 spe cifically, the petiti oner all eges th at because he filed a timely

motion to appeal with the Board, he in fact filed within the sixty da y time limit. The petitioner is in error. The sixty-day time pe ri od to fi le a w ri t o f c er ti or ar i i s n ot to ll ed by the Board of Parole’s internal proce dures. The petitioner can pursue both remedies, but these remedies are independent of eac h other. The Court finds that the petitioner has failed to file this petition for writ of certiorari within the statutory time peri od. Thus, t

his Court is without jurisdiction to review his petition. For the fore--5- going reason, the resp ondent’smotion is dis miss is GRANTED. Petitioner is assessed state litigati on taxes.

The “Moti on to Dismis s” refe rs to TRCP Rule

12.02, and states th at the pe tition fai ls to state a claim for which relief can be g ranted. 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 judgme

nt as provided by TRCP Rule 56. (See last sentence of Rule 12.02).

A petition for certiorari must be filed within 60 day s from the entry of the order or judgmen t from whi ch relie

f is sought. T.C.A. § 27-9-10 2; 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 e ntry of the fin al action

of the B oard. Th

e date of the cast ing of th e last vote of a member of the Board is not necessa rily the date of the

final action of the Board. Due process requires a formal order c ommunicated to the affected party

.
There is evidence that some form of administrative appea l 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 effec

t, and none has been cited by appe

llees. This Court has held in unpublished opinions that the sixty-day period for seeking judicial r elief be gins upo n final a

ction upon

the admin

istrative appeal.

The dismissal is based upon the untimeliness of the petition which is not shown by the alleg ations of

the petiti on or the e

vidence supportin g the mot

ion. The motion should have been overruled to allow further pr oceedings to determine the date of entr y of the orde

r-6-

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 r elief can be granted.

The judgment of the Trial Court is reversed. Costs of this appeal ar e assessed to the appelle es. The c ause is r

emanded to the Tri al Court f

or further proc eeding s.



### REVERSED AN

D REMANDED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE