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### STATE OF MICHIGAN

COURT OF APPEALS

JOHN R. WOLFE,

Petitioner-Appellant, UNPUBLISHED December 10, 2015

v No. 322823
Ionia Circuit Court DEPARTMENT OF CORRECTIONS, LC No. 2013-030276-AA

Respondent-Appellee.

Before: O WENS , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Petitioner, an inmate in the cu stody of respondent, the Depart ment of Corrections, appeals by leave granted the tr ial court’s July 2, 2014 order. 1 This order denied petitioner’s appeal of the July 27, 2013 decision of a hearings officer that found petitioner guilty of a charge of incite to riot or strike, ri oting or striking. We vacate th e trial court’s July 2, 2014 order and remand for dismissal of petiti oner’s petition for review.

In response to petitioner’s argument that this Court should re verse the trial court’s order and set aside the decision of the hearings officer because his due process rights were violated, respondent argues that the trial court lacked subject-matter ju risdiction over the petition for review where the petition was not timely filed. Because respon dent raised this issue before the trial court, even though the trial court did not address it, it is preserved. See Klooster v
Charlevoix , 488 Mich 289, 310; 795 NW2d 578 (2011). Regardless, a challe nge to the trial court’s subject-matter jurisdiction may be raised at any time, even if for the first time on appeal.
Smith v Smith , 218 Mich App 727, 729-730; 555 NW2d 271 (1996). The issue wh ether a trial court has subject-matter jurisdic tion is a question of law that is reviewed de novo. Clohset v No Name Corp (On Remand) , 302 Mich App 550, 559; 840 NW2d 375 (2013).

MCL 791.255 provides, in pertinent part:

1 Wolfe v Dep’t of Corrections , unpublished order of the Court o f Appeals, entered February 2 3, 2015 (Docket No. 322823).-2- (1) A prisoner aggrieved by a fi nal decision or order of a hea rings officer shall file a motion or application for rehearing in order to ex haust his or her administrative remedies before seeking judicial review of the f inal decision or
order.

(2) Within 60 days after the date of delivery or mailing of no tice of the decision on the motion or applic ation for the rehearing, if the motion or application is denied or within 60 days after the decision of t he department or hearing[s] officer on the rehearing, a prisoner aggrieved by a final decision or order may file an application fo r direct review in the circuit court in the county where the petitioner resides or i n the circuit court for Ingham County.

“This statutory provision clearly provides that a prisoner, pri or to seeking review in circuit court, must file a motion for rehearing and that judicial review must be sought within sixty days after the date of delivery or mailing of the notice of the decision o n the motion for rehearing.” Seaton-El v Dep’t of Corrections , 184 Mich App 454, 455; 458 NW2d 910 (1990). “[A]n application for direct review is filed for purposes of MCL 791. 255(2) when it is submitted to, and received by, the circuit c ourt for filing with either the f iling fee or a claim of indigency [under MCL 600.2963(1)] within the sixty-day time limitation im posed by statute.” Keenan v Dep’t of Corrections , 250 Mich App 628, 633; 649 NW2d 133 (2002).

Petitioner requested a rehearing of the hearings officer’s dec ision. The decision to deny petitioner’s request for rehearing was mailed on September 30, 2013. MCR 1.108(1) provides how to compute a period of time:

The day of the act, event, or default after which the designat ed period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to
court order.

Sixty days from September 30, 2013, was November 29, 2013, whic h was the Friday after Thanksgiving. The Friday after Thanksgiving is a court holiday . See MCR 8.110(D)(2)(a). Accordingly, the last day of the 60-day period for petitioner t o file his petition for review was Monday, December 2, 2013. However, petitioner did not file his petition for review until December 6, 2013. The untimely filing of the petition for revi ew deprived the trial court of jurisdiction to hear petitioner’s appeal of the hearings office r’s decision. See Davis v Dep’t of
Corrections , 251 Mich App 372, 374- 376; 651 NW2d 486 (2002). We, therefor e, vacate the trial court’s July 2, 2014 order and rem and for dismissal of the peti tion for review.

We acknowledge petitioner’s argument, in his reply to responde nt’s response to his application for leave to appeal, that his petition for review w as timely filed under “the mailbox rule.” The mailbox rule provides that a legal document filed b y a pro per inmate of the Department of Corrections is deemed to be filed on the date tha t it is deposited in the outgoing
mail at the correctional institu tion housing the inmate. See, e.g., MCR 7.204(A)(2)(e). Although there is a mailbox rule in MCR 7.204(A)(2)(e), MCR 7.205(A)(3), and MCR 7.302(C)(3), there-3- is currently no mailbox rule i n chapter 7.100 of the court rule s, which governs appeals to the circuit courts. There was a mailbox rule in MCR 7.105, see 485 Mich ccxcii-ccxciv, but this
mailbox rule was deleted from th e court rules when chapter 7.10 0 was rewritten in 2011, see 490 Mich clxii-ccxii. We can only reasonably surmise that our Supr eme Court fully intended to withdraw the mailbox rule’s app lication in circuit court appeal s. We also note that the lower court record did not contain a sworn statement from petitioner setting forth the date of deposit that the petition was placed in t he outgoing mail at petitioner ’s correctional in stitution, which is a mechanism to establish timely filing/deposit under the mailbox rule, had it applied. See MCR 7.204(A)(2)(e). In sum, there is no mailbox rule that applies to the petition for review, and we reject petitioner’s claim that the mailbox r ule made the filing of his petition for review timely.

Vacated and remanded for dismissal of petitioner’s petition fo r review. We do not retain jurisdiction.

/s/ Donald S. Owens /s/ William B. Murphy
/s/ Joel P. Hoekstra