### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs February

22, 2002 THOMAS DYER v. TENNESSEE DEP ARTMENT OF C ORRECTION Appeal from the Chancery Court for Davidson County No. 01-885-I Irvin H. Kilcrease, Jr., Chancellor

No. M2001-01446-COA-R3-CV - Filed Septem ber 5, 2002

The release eligibility

date of a prisoner was extended by 30% after he assaulted a corre cti onal employee. The prisoner petitioned for judicial review of the extension, arg uing that it amounted to an unconstit

utional vio lation of t

he ex post f

acto prohibiti on, double j eopardy, a nd separation of powers. The tria

l court dis missed his p etition. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM B. C AIN , J., joined. W IL LI AM C. K OCH , J R ., J., filed a concurring opinion. Thomas Dyer, Mounta

in City, Tennessee, Pro Se.
Paul G. Summers, Attorney Gene ral and Reporter; Micha el E. Mo ore, Solicitor General; Dawn Jordan, Assistant Attorney Genera l, for the appellee, State of Tennessee.
OPINION
I. A D ISCI PLI NARY I NFRACTI ON Thomas Dyer wa s convicted of burglary and grand larceny

in 1985, smuggling of contraband in 1986, and fel ony escape in 1990. He received separate sente nces of imprisonment for each offense. On May 17, 1993, he c ame before the prison disciplinary board for assault on a staff member, and was c onvicted of the vio lation. Asa conseq uence, the Relea se Eligibility Date (RED) on all his offenses was extended 30%.
On March 21, 2001, M r. Dy er file d a pe ti ti on in th e C ha nc er y Co ur t o f D av id so n C ou nt y, which he styled

as a Petition for Judicial Review/Declaratory Judgment/Petition for Common Law Writ of Certio rari. He contended that the Department of Correction had exceeded its jurisdiction and acted illegally by

extending the RED for his 1985 and 1986 offenses. He alleged that the policy

that-2-

allowedthe Department to extend the time he had to serve before becoming e ligible for release was enacted in 1989, and that it therefore was a vio lation of t

he ex post f

acto prohibition to a

pply it to offenses committed before that date.
The Department filed

a motion to dismiss on April 17, 2001, for failure to state a claim for which relief can be

granted. See Tenn. R. Civ. P. 12.02(6). Mr. Dyer’ s response to the motion added allegations that

the extens ion of his RE

D also violated his rights against double jeopardy , and that Tenn. Co de An n. § 40-35-501 and Tennessee Department of Corr ection Policy #502.02 (which auth orize extensionsto an inmate’s RED) violate the separation of powers doctrine

. See Tennessee Constitution Art. 2, § 2.
On May 24, 2000, the trial court dismissed the petition in its entirety. The cha ncellor found that the petition was not timely filed, and that in any case the Departm

ent had a cted pur suant to its authority to defer an inmate’s RED for violation of any of the rule s of the Department of Correction. See Tenn. Code Ann. § 40-35-501(k). This appeal followed.
II. T IMELI NESS AND J URIS DICTI ON As the chancellor correctly observed, Ten n. Code Ann. § 27-9-102 requires that a petition for writ of c ertiora

ri be filed no later

than sixty

day s from the

date of the administrative action of which the petiti oner com

plains. F ailure to

file within the statutory time limit results in the decision becoming final, which deprives thecourt of jurisdiction. See Fairhaven Corporation v. Tennessee Health Facilitie s Co mmission, 566 S.W.2d 885 (Tenn. Ct. App. 1976). The action that was chall enged

in this cas e occur

red on Ma

y 17 , 1993. The

petition f or cert iorari w as not fil ed unti l almost seven yea

rs later. It was clea

rly untimely

. We note also t ha t t wo typ es of declaratory judgment actions have been recog nized by our Legislature. The D eclara tory Judgment Act, Tenn . Code Ann . § 29-14- 102, has b een held not to apply to suits against state entities such as theTennesseeDepartment of Correction. See Watson v. Tennessee Dept. Of Correction, 970 S.W.2d 494 (Tenn. Ct. App. 1998). A party may petition the court for a declaratory

judgment against a state ag ency unde r the Uniform Administra tive P rocedures Act, Tenn. Code Ann. § 4-5-101, et seq., butonly if the complainant has fir st petitioned the agency for a declaratory

order, and the agency

has refused to issue such an order. See Tenn. Code Ann. § 4-5-225. There is no thing in the record to indicate that Mr. Dy er petitioned the Department of Correction for a declaratory order. Thus, whether we conside r hi s petition to be one for a writ of certiorari or for a declara

tory judgment, it is clea

r that he is not entitled to relief.
III. C ONSTITUTIONAL Q UESTI ONS
Mr. Dyer a

rgues that a c onstitution al question can be raised a t any time. Tha

t is not quite correct. It would be more acc urate to say tha

t normal procedural rules may sometimes be relaxed when a compla

ining pa rty demonstr ates tha t a challe nged sta tute or ru le is faciall

y unconstituti onal. See Caldwell v. State, 917 S.W.2d 662 (Tenn. 1 996); Richardson v. Tenn. Board of Dentist

ry , 9131 We note tha t this cour t has pr eviou sly uphe ld bo th Te nn. Co de A nn. § 40-35-501 and Tennessee De partment

of Co rrectio n Po licy #5 02.0 2 aga inst con stitutional c halleng e. See Sm ith v. C am pbe ll , 995 S. W.2d 116 (Tenn. Ct . App. 199 9); Ogburn v. Te nnesse e Dept. of Corr ecti on , 983 S.W .2d 677 (T enn. Ct. App. 1998).

-3- S.W .2d 446 (Tenn. 1995). Even though neither Tenn. Code Ann. § 40- 35-501 no r Tenne sse e Department

of Correction Policy #502.02 appe ar to be facially unconstitutional, we will b riefly address the constitutional issues raised by the petitioner. 1
A. E X P OST F ACTO C ONCERNS Mr. Dyer c ontends that he is entitled to serve each of his sentences in acc ordance with the laws in effect

at the time of sentencing, and that because of the constitutional prohibition against ex post facto laws, his 1985 and 1986 sentences could no t be altered b y a Depa rtment of Correction regulationthat was enacted in 1989. It is bey ond dispute that a law that inflicts a greater punishment than the law a

ttached to the crime

when it wa s committe d would be an ex post facto violation. See State v. Wyrick, 62 S.W.3d 751 (Tenn. Cr im. App. 20 01); Wheeler v. Tennesse e Dept. of Correction, 36 S.W.3d 824 (Tenn. Ct. A pp. 2000) ; State v. R ogers992 S.W.2d 393 (Te nn. 1999); Kaylor v. Bradley , 912 S.W.2d 728 (Tenn. Ct. App. 1995).
We note, however, that as part of the Criminal Sentencing Ref orm Ac t of 1982 , the Tennessee Legi slature provided that a prisoner’s release eligibility date may be deferred at the discretion of the Commissioner, for a violation of any of the

rules of the Department

of Correction, withtwo limitations: The extension must not exceed the f ull sente nce originally

imposed by the court, and it must be imposed pursuant to regulations which give notice of the length of discre tionary increases that may be imposed for a violation of each of the rules of the Department. See Tenn. Code Ann. § 40-35-501(k).
The ex post fac to prohibition is based on considerations of basic fairness. I t was established to en sure tha

t individua

ls rece ive fair notice th at certa

in behavi or is unla

wful, as w ell as t

h e consequences of engaging in such be havior. Tenn. Code Ann. § 40-35-501 was enacted three years before Mr. Dyer’ s first offense. Thus, he should have been aware that his RED could be extended, depending on his cond

uct in pris on. He ac

knowledg es that Rul e 5 02.02 wasfirst pro mulgated in 1989, four y

ears before his1993 assa

ult, and he does not dispute that it authorizes the Department to extend an inmate’s RED up to 30% of his maximu m sentenc e for the

violation o f certa

in rules. There is clearly

no ex post facto violation here.

B. D OUBLE J EOPARDY
Mr. Dyer a

rgues that Tenn. Code Ann. § 40-35-501 authorizes multiple punishments for the same of fense, and that this constitutes double jeopardy . He notes that escape and assault m ay b e prosecuted

in the criminal courts, and be the subject of disciplinary proceedings as well. The petitioner appear s to lack s tanding

to raise t his issue, since hisprior co nviction f or esca pe is notat-4-

issue in this cas e, and he

does not a

llege t hat attem pts were made to pr

osecute him crimin ally

for his 1993 assa ult.
In any eve

nt, this issue has been litigated many times, and our courts have alway s reached the same conclusion. Disciplinary proceedings that do n ot lengthen the sentence a prisoner was serving at the time he breached the prison’s rules ar e essent ially administr

ative in nature. They

are notin conflict with proceedings in the criminal courts which can result in a new conviction and new sentence for the defendant, ev en when the s ame conduct is the subject of both proceedings. See Ogburnv. Tennessee Dept. of Correction , 983 S.W.2d 6 77 (Tenn . Ct. App. 1998 ); Ray v. State , 577 S.W.2d 681 (Tenn. Crim. App. 1978); State ex rel. Turne r v. Gore , 175 S.W.2d 317 (Tenn. 1943).
C. S EPARA TION OF P OWERS
Mr. Dyer’ s separation of powers argument is based e ntire ly upon a c ase fro m the Ohio Supreme Court, State ex rel Bary v. Ru ssell , 729 N.E.2d 359 (Ohio 2000). In that case , the court found that an Oh

io statute would allow that state’s parole board to extend the length of an inmate’s incarceration

beyond the original judicially- imposed sentence. The court found this to be an encroachment

upon the judicial power

by the execut

ive, and thus a violation of the separation of powers mandated by

the Ohio constitution.
Even if we put aside the fact that in this case we are not dealing with Ohio s tatu tes or the Ohio constitution, we find Mr. Dyer’ s situation to be quite different. The disciplinary board extended the amount of time he had to remain incarcerated within his original senten ce before becoming eligible

for rele ase. I

t did not extend t

he length of his sentence, but changed one of the conditions under which it was to be s erved. The cha nge was within both the pa

rameters of a sta

tute in effec t at the time

of his c on viction, and the executive power to regulate discipline within the state’s prisons. The separation of powers arg ument is without merit.
IV.
The order of the trial court is affirmed. Remand this cause to the Chanc ery Court of Davidson County for

further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Thomas Dy er.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.