# FILED
Au gust 30, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk EDDIE JOHNSON, ) ) Petitioner/Appellant, ) Appeal No. ) 01-A-01-9605-CV-00213 v. ) ) TENNESSEE BOARD OF PAROLES, ) Davidson Circuit ) No. 95C-1607 Respondent/Appellee. )



### COURT OF AP PEALS OF TE NNESSEE MIDDLE SECT ION AT NASH VILLE
APPEAL FROM

THE CIRCUI T COURT FOR DAVIDSON C OUNTY AT NASHVILL E, TENNESSE E
THE HONORAB LE HAMILTON V. GAYDEN, JR., CHANC ELLOR

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 REMANDED1 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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 2 

### SAMUEL L. L EWIS, JUDGE 

# MEMORANDUM OPINION 1

This is an ap peal by petitioner/appellant, Eddie Johnson, from a decision of the chancery court dismissing his petition for writ of certiorari.

Pet itioner is an inmate incarcerated at the Lake Co unt y Regional Facility. On 1 July 1993, the Board of Paro les ("the Board") granted him parole and then rescinded the parole on 14 October 1993.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 recomm ende d releasing petitioner. The Board did not accept the hearing officer's recommendation and denied petitioner's parole bec ause o f the seriousness of his offense and his high risk. Petitioner requested
anappeal . Th e Board informed petitioner that it had denied his request for an appeal in a letter dated 3 February 1995.

On19 May 1995, petitioner filed a petition seeking a writ of certiorari to review the Board's decisionwhich denied him release on parole. The Board f iled 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.

On31 August 1995 , t he trial court dismissed the petition finding that petitioner's petition for writ of certiorari was not3

timelyfiled. Petitioner filed a timely notice of appeal as to the trial court's decision. After reviewing the record, we are of the opinionthat 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 fromthe entry of the order or judgment complained of. This sixty daytime limit is a jurisdictional prerequisite and applies both to
commonlaw and statut ory wr its 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 d ecisio ns in this case. These are the recision of his parole in 1993 and the denial of parole in 1995. Petition er's clai m 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 deter mined 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.4 Applying this analysis to the present case, petitioner received the letter from the Board informing him that it had decided t o deny his request for an appeal on 3 February 1995. Thus, the date from which the sixty days began to run was 3 February1995. Petitioner filed his writ on 19 May 1995, more than sixtydays 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 th e t rial 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