Ward v. TN Bd. of Paroles

• Court: Court of Appeals of Tennessee
• Decided: March 16, 2000
• Docket: M1999-02478-COA-R3-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

FILED March 16, 2000 JAMES WARD, ) ) Cecil Crowson, Jr. Petitioner/Appellant, ) Appellate Court Clerk ) Appeal No. ) M1999-02478-COA-R3-CV VS. ) ) Davidson Chancery ) No. 98-1559-III TENNESSEE BOARD OF ) PAROLES, ) ) Respondent/Appellee. )

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

THE HONORABLE ELLEN HOBBS LYLE, JUDGE

JAMES WARD Northeast Correctional Complex P. O. Box 5000 Mountain City, Tennessee 37683 Pro Se Petitioner/Appellant

PAUL G. SUMMERS Attorney General and Reporter

KIMBERLY J. DEAN Deputy Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Respondent/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. OPINION

A prisoner claimed that the Board of Paroles had acted

unconstitutionally, illegally and capriciously by denying him parole, and

deciding not to grant him any future parole hearings until the expiration of his

sentence. The trial court dismissed his petition. We affirm the trial court.

I.

James Ward was convicted of second degree murder in 1991, and

was sentenced to thirty years imprisonment. On October 22, 1997, he received

a parole hearing. Although the record does not contain the usual statement of

parole board action, Mr. Ward claims that not only was he turned down for

parole, but that the Board of Paroles decided to deny him any further parole

hearings for the full term of his sentence.

Mr. Ward appealed to the full Board. In a letter dated February 10,

1998, the Board turned down his appeal. Among other things, the Board stated

that it had reviewed its files and the tape recording of the hearing, and that

contrary to the prisoner’s allegations, it found no significant procedural errors by

the hearing officer. The final sentence of the letter reads “[t]his disposition is

final and there is no further appeal recourse available to you on this matter

through the Tennessee Board of Paroles.”

-2- Despite this statement, Mr. Ward attempted to file a “Petition for a

Declaratory Order” with the Board on February 26, 1998. The Board did not

respond to the petition. On May 21, 1998, the prisoner filed a document in the

Chancery Court of Davidson County, captioned as a “PETITION FOR

JUDICIAL REVIEW and/or PETITION FOR A DECLARATORY JUDGMENT

and/or PETITION FOR COMMON LAW WRIT OF CERTIORARI”. The State

filed a motion to dismiss the petition for failure to file it within the jurisdictional

time limit. Mr. Ward filed a response in opposition to the motion. On February

5, 1999, the trial court granted the motion to dismiss. This appeal followed.

II.

Mr. Ward incorporated by reference his petition for a declaratory

order with his petition in the trial court. In these documents, he claimed first that

he was improperly sentenced because the maximum penalty for second degree

murder for Range 1 offenders is twenty-five years, not thirty years. He also

claimed that the Board acted illegally and unconstitutionally by declining to

grant him any future parole hearings. Finally, he argued that the Board failed to

give any reasons for its decision.

The trial court correctly noted that the Board of Paroles is not the

proper agency for challenging the length of a sentence, and that in any case

declaratory orders are not applicable to the Board. Tenn. Code. Ann. § 4-5-

106(c). If the complaint is that the trial court imposed a sentence that was not

authorized by law, then the proper route of appeal is to the Court of Criminal

-3- Appeals. If the allegation is of a sentencing miscalculation, then a petition for

declaratory order should be addressed to the Department of Correction. Tenn.

Code. Ann. § 4-5-223. If the Department refuses to grant the order, then appeal

may be had by filing a petition for declaratory judgment in the chancery court.

Tenn. Code. Ann. § 4-5-224.

Since declaratory judgment was inapplicable, the trial court treated

Mr. Ward’s petition for judicial relief as a request for a common law writ of

certiorari. Such a petition must be filed within sixty days from the order or

judgment appealed from, or the trial court loses all jurisdiction over the matter.

See Fairhaven Corporation v. Tenn. Health Facilities Commission, 566 S.W.2d

885 (Tenn. Ct. App. 1976); Thandiwe v. Traughber, 909 S.W.2d 802 (Tenn. Ct.

App. 1994).

The Board denied Mr. Ward’s appeal on February 10, 1998. He did

not file his petition until May 21, 1998, well past the sixty day deadline. Thus,

the court lacked the jurisdiction to grant the writ. Mr. Ward attempts to

circumvent the sixty day requirement by arguing that he is not appealing the

Board’s action of February 10, 1998, but its failure to respond to his “Petition for

Declaratory Order.” This argument is without merit, since the February letter

clearly stated that its decision was final, and that no further appeal to the Board

was available to the prisoner.

-4- III.

The order of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant, James Ward.

_______________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

____________________________ WILLIAM C. KOCH, JR., JUDGE

____________________________ WILLIAM B. CAIN, JUDGE