Johnson v. Dept. of Corrections

• Court: Court of Appeals of Tennessee
• Decided: September 23, 1998
• Docket: 01A01-9710-CH-00586
• Status: Published

Opinion

WALTER K. JOHNSON, ) Davidson Chancery ) No. 96-3153-III Plaintiff/Appellant, ) ) VS. ) ) TENNESSEE DEPARTMENT OF CORRECTIONS, ) ) ) Appeal No. FILED 01A01-9710-CH-00586 Defendant/Appellee. ) September 23, 1998

Cecil W. Crowson IN THE COURT OF APPEALS OF TENNESSEE Appellate Court Clerk MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

Walter K. Johnson, #94955 R.M.S.I., Unit 6, A-123 7475 Cockrill Bend Road Nashville, Tennessee 37209-1010 PRO SE/ PLAINTIFF/APPELLANT

John R. Miles, #13346 Counsel for the State Civil Rights & Claims Division Cordell Hull Bldg., Second Floor 425 Fifth Avenue North Nashville, Tennessee 37243-0488 ATTORNEY FOR DEFENDANT/APPELLEE,

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR: WILLIAM C. KOCH, JR., JUDGE

CONCURS IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE WALTER K. JOHNSON, ) Davidson Chancery ) No. 96-3153-III Plaintiff/Appellant, ) ) VS. ) ) TENNESSEE DEPARTMENT OF ) CORRECTIONS, ) Appeal No. ) 01A01-9710-CH-00586 Defendant/Appellee. )

OPINION The captioned petitioner, a prisoner in the custody of the Tennessee Department of

correction, has appealed from the judgment of the Trial Court dismissing his “Petition for a

Declaratory Judgment”, which is, in reality an action seeking review of an administrative

decision of the Department regarding sentence credits. The grounds of the dismissal were

twofold:

1. Application for judicial review was not filed within 60 days after final action of

the administrative agency as required by T.C.A. § 4-5-322(b)(1), and

2. Failure to state a claim for which relief can be granted because the “sentence

credits” sought by petitioner are not matters of right but of discretion by the administrative

authorities. T.C.A. § 41-21-236(a)(2) and (3).

The petition was filed in the Trial Court on October 7, 1996. It does not specify the date

on which the Department made a declaratory ruling or refused to do so.

The petition exhibits two letters from the department which are relevant to the timeliness

of the petition to the Trial Court. The first is dated April 3, 1996, denying a declaratory order.

The second, dated August 5, 1996, responds to a second request for declaratory order by referring

to the April 3, 1996 letter.

-2- It is clear that more than 60 days elapsed from April 3, 1996 to October 7, 1996.

The Trial Court has no jurisdiction to consider any application for relief from an

administrative decision unless the application for relief is filed with the Trial Court within 60

days after the date of the administrative action from which relief is sought. T.C.A. § 4-5-322.

In the absence of a motion for re-consideration, the administrative agency has no power

to extend the time for application for judicial review by reiterating its former action.

Absent jurisdiction of the Trial Court, to address the merits of the application, this Court

has no jurisdiction to review the rulings of the Trial Court upon the merits of the controversy.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed to the

appellant. The Trial Court deferred the payment of Trial Courts costs and tax until disposition

of the appeal. The cause is remanded to the Trial Court for entry and enforcement of its

judgment against the petitioner for trial court costs and litigation tax.

__________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCURS IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE

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