Turner v. Tennessee Bd. of Paroles
| Decision Date | 18 February 1999 |
| Citation | 993 S.W.2d 78 |
| Parties | Donald R. TURNER, Petitioner/Appellant, v. TENNESSEE BOARD OF PAROLES, Respondent/Appellee. |
| Court | Tennessee Court of Appeals |
Donald R. Turner, Brushy Mountain Correctional Complex, Wartburg, Pro Se/Petitioner/Appellant.
John Knox Walkup, Attorney General and Reporter, John R. Miles, c/o Attorney General and Reporter, Nashville, for Respondent/Appellee.
An inmate in the custody of the Department of Correction filed a complaint which alleged that the Board of Paroles had acted arbitrarily and fraudulently in denying him parole. The State filed a motion to dismiss for lack of jurisdiction and a motion for summary judgment. The trial court granted both motions. We affirm.
Donald R. Turner pled guilty to aggravated sexual battery and he was sentenced to eight years imprisonment on July 8, 1993. It appears that at the time he was already serving a sixteen year sentence in a federal prison in California. The court ordered that the sentence on the sexual battery conviction, as well as sentences on four forgery charges he had been convicted of earlier, be served concurrently with his federal sentence.
On April 18, 1995, Mr. Turner was paroled from federal prison. He traveled to Oregon, but was subsequently extradited to this state to complete his Tennessee sentence. On March 11, 1997, Mr. Turner received a parole hearing, which was conducted by Board of Paroles member Tom Biggs. Mr. Biggs recommended that Mr. Turner not be granted parole, citing seriousness of offense as a reason. Two other Board members concurred, and parole was denied on March 21, 1997.
On April 7, 1997, the Board received a document entitled "The Truth Will Set You Free," in which Mr. Turner criticized the manner in which Mr. Biggs conducted his parole hearing, asserted his innocence, challenged the legality of his extradition from Oregon, and complained of the cost borne by taxpayers to keep him locked up. The Board treated this document as a request for an administrative appeal, and denied the request by letter on April 17, 1997, because "[it] does not meet any of the established criteria for granting a parole hearing." Mr. Turner later stated that he had prepared the document to send to the newspapers, but that his mother had mistakenly sent it instead to the Board of Paroles.
On April 15, 1997, Mr. Turner submitted a standard Board of Paroles form titled "Request for Appeal Hearing," with an attached letter, in which he asserted that Mr. Biggs had failed to consider, or even to look at, evidence that Mr. Turner had completed a course of therapy while in federal custody. The Board denied the request, for the same reason cited in its letter of April 17.
Mr. Turner filed a petition for writ of certiorari in the Chancery Court of Davidson County on June 3, 1997. He claimed that "Seriousness of Offense" was so frequently used by the Board that it had lost all meaning, and thus had become invalid as a basis for denying parole. He also claimed that the Board had acted fraudulently and arbitrarily by not considering all the information available at the parole hearing. The Board filed motions for dismissal and for summary judgment.
The trial court granted the motion to dismiss, finding that since the petition had been filed more than 60 days after the Board's decision of March 21, 1997, the court had been deprived of the jurisdiction required to grant a writ of certiorari. See Tenn.Code Ann. § 27-9-102. The trial court also granted the Board's motion for summary judgment, finding that Mr. Turner had not raised any genuine issues of material fact to refute the affidavit in the record. This appeal followed.
Our courts have had many opportunities to rule upon the significance of the statutory time limit found in Tenn.Code Ann. § 27-9-102 for filing a petition for a writ of certiorari. Failure to file within sixty days of the administrative action complained of results in the trial court losing jurisdiction over the decision in dispute. Fairhaven Corp. v. Tennessee Health Facilities Commission, 566 S.W.2d 885 (Tenn.App.1976); Thandiwe v. Traughber, 909 S.W.2d 802 (Tenn.App.1994).
The Board of Paroles permits the filing of an administrative appeal from an adverse parole decision, if the appeal is filed within twenty-one days of that decision. Rules of the Board of Paroles 1100-1-1-.07(3)(c). In an unpublished opinion, this court has stated that the filing of a timely appeal with the Board of Paroles tolls the statutory sixty day period, Phelps v. Tennessee Board of Paroles, Appeal No. 01-A-01-9603-CH-00103, 1997 WL 718482 (filed Nashville November 19, 1997). But even if this opinion could be validly cited as controlling authority, it appears to us self-evident that an untimely appeal would have no such effect.
In the present case, Mr. Turner...
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...determine whether the tribunal exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. Turner v. Tennessee Bd. of Paroles, 993 S.W.2d 78, 80 (Tenn. Ct. App. 1999); Daniels v. Traughber, 984 S.W.2d 918, 924 (Tenn. Ct. App. The writ itself is an order issued by a superior ......
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