Ruff v. Traughber

• Court: Court of Appeals of Tennessee
• Decided: June 18, 1997
• Docket: 01A01-9702-CH-00074
• Status: Published

Opinion

GEORGE RUFF, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1362-I ) VS. ) ) Appeal No. CHARLES TRAUGHBER, CHAIRMAN, ) 01-A-01-9702-CH-00074 TENNESSEE BOARD OF PAROLES, ) ET AL., )

Defendants/Appellees. ) ) FILED June 18, 1997

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

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

HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

John Knox Walkup Attorney General and Reporter

Teresa S. Thomas #12788 Counsel for the State 404 James Robertson Parkway Nashville, TN 37243 ATTORNEYS FOR DEFENDANTS/APPELLEES

George Ruff, #203318 BMSP, P.O. Box 1000 Petros, TN 37845 PRO SE/PLAINTIFF/APPELLANT

AFFIRMED AND REMANDED

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE BEN H. CANTRELL, JUDGE GEORGE RUFF, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1362-I ) VS. ) ) Appeal No. CHARLES TRAUGHBER, CHAIRMAN, ) 01-A-01-9702-CH-00074 TENNESSEE BOARD OF PAROLES, ) ET AL., ) ) Defendants/Appellees. )

O P I N I O N

The captioned plaintiff has appealed from the judgment of the Trial Court which

dismissed plaintiff’s petition for certiorari. Plaintiff’s petition concerned the action of the

defendants, members of the Board of Paroles, in denying petitioner’s application for parole from the

custody of the Department of Correction.

The only issue presented to this Court by the appellant reads as follows:

The Trial Court erred in overruling petitioner’s motion for enlargement of time for filing and then dismissing the petition for the writ of certiorari for failure to timely file.

The petition for certiorari was filed with the Trial Court on May 1, 1996. It does not state

the date of the order of the Parole Board to be reviewed.

The Board filed a motion to dismiss on the ground that the petition was not filed with the

Trial Court within 60 days after the action to be reviewed as required by T.C.A. § 27-9-102. The

motion was supported by affidavit identifying a certain record of the Parole Board entitled “Notice

of Board Action Parole Release Hearing.” The only intelligible information appearing on said sheet

is the identification of plaintiff, three words “Decline - Review” 135, S-0-01Y-P.S., three initials

dated 1-24-96, 1-26-96, and 2-5-96 and a separate initial dated 2-5-96. While the sheet just

described may be more informative to one knowledgeable of its code, it is virtually worthless to the

-2- uninitiated. Presumably, it is intended as evidence that the action of the Board took place on

February 5, 1996. If so, the complaint, filed on May 1, 1996, was untimely.

The petition admits that the Board’s decision was entered on February 5, 1996, but claims

that petitioner did not receive notice of the decision “until February”. However, there is no sworn

evidence to support the latter claim.

As above stated, plaintiff’s sole complaint on appeal is that the 60-day time limitation of

§ 27-9-102, was not extended. The extension was not requested until September 17, 1996, seven

months after the date of the order to be reviewed, and five months after the expiration of the statutory

time for filing petition for review.

Petitioner claims that his “jailhouse lawyer” excluded weekends and non-business days in

computing that the 60-day period for filing petition for review extended to May 10, 1996.

Unfortunately for plaintiff, the opinion of the jailhouse lawyer was incorrect. A much more reliable

source of information on appellate procedure is Tennessee Rules of Appellate procedure, which is

doubtless available to plaintiff.

Plaintiff also claims that his petition was postmarked May 10, 1996, but this statement is not

supported by evidence.

Since the petition and motion for enlargement admit facts showing that the petition was

untimely, a judgment of dismissal was in order. Thandiwe v. Traughber, Tenn. App. 1994, 909

S.W.2d 802, 803-804.

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

-3- plaintiff. The cause is remanded to the Trial Court for necessary further procedure.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

_____________________________ SAMUEL L. LEWIS, JUDGE

_____________________________ BEN H. CANTRELL, JUDGE

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