                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        July 22, 2014 Session

                 HERBERT N. JACKSON v. STATE OF TENNESSEE

               Appeal from the Tennessee Claims Commission
  No. T20120909 Nancy Miller-Herron, Commissioner, TN. Claims Commission
                             (Western Division)




                 No. W2013-02423-COA-R3-CV - Filed September 11, 2014




This is an appeal from the Tennessee Claims Commission’s dismissal of Appellant’s claim
against the Madison County Circuit Court for alleged sentencing errors made in Appellant’s
criminal case. The Commission dismissed the claim on the ground of judicial immunity.
Appellant appeals. Because the Appellant failed to timely file his notice of appeal, this Court
does not have subject matter jurisdiction over this appeal. Accordingly, we dismiss.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

K ENNY W. A RMSTRONG, SP., J., delivered the opinion of the Court, in which J. S TEVEN
S TAFFORD, J., and W. N EAL M CB RAYER, J., joined.


Andrew Pate, Knoxville, Tennessee, for the appellant, Herbert N. Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor
General; Joseph Ahillen, Assistant Attorney General, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION 1


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
                                                                                  (Continued.....)
        The case began when Appellant, Herbert Jackson, filed a pro se claim against the
Appellee State of Tennessee in the Tennessee Claims Commission.2 In his claim, Mr.
Jackson sought money damages for alleged sentencing errors made by the Madison County
Circuit Court. Claimant also raised allegations regarding medical treatment that he received
in prison, and further alleged that he was injured by the prison footwear.

       The alleged sentencing errors were related to Mr. Jackson's felony conviction in
Madison County. On September 11, 2006, Mr. Jackson entered a plea of guilty to theft of
property valued at $1,000 or more but less than $10,000, and the Madison County Circuit
Court imposed a sentence of four years, to be served as 11 months and 29 days’ incarceration
followed by community corrections. See Jackson v. Parker, 366 S.W.3d 186, 187 (Tenn.
Crim. App. 2011). The trial court awarded Mr. Jackson 251 days of pretrial jail credit, which
reflected his incarceration from January 3, 2006, to September 11, 2006. Id. at 188. On
December 4, 2009, a community corrections violation warrant issued, alleging that Mr.
Jackson had failed to comply with the terms of his release by testing positive for cocaine on
November 30, 2009, and by failing to pay court costs. Id. Mr. Jackson was arrested that
same day. A second violation warrant issued on January 11, 2010, and added an allegation
that Mr. Jackson tested positive for cocaine on December 18, 2009. Id. Mr. Jackson was
arrested pursuant to the violation warrant on January 11, 2010. Id.

       Based upon the foregoing violations, on January 25, 2010, the trial court, using a form
“order” that permitted the court to simply check certain boxes, revoked Mr. Jackson’s
community corrections sentence and checked those boxes requiring him to “serve [the]
original sentence imposed” subject to “credit for time served on above referenced case[ ].”
Jackson, 366 S.W.3d at 188. The trial court apparently did not enter a new conviction
judgment that included a calculation of jail and community corrections credits following the
revocation. Id. On June 8, 2010, Mr. Jackson filed a petition for writ of habeas corpus,
alleging that the sentence imposed by the trial court following the revocation of his
community corrections was illegal because the trial court failed to award him


       (......continued)
        would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.


       2
          Mr. Jackson’s claim was originally filed with the Division of Claims Administration (DCA)
before it was transferred to the Claims Commission pursuant to Tenn. Code Ann. § 9-8-402(c). Mr.
Jackson filed a Claim for Damages with the DCA that set forth his claims for relief. He relied on the
Claim for Damages as his complaint before the Claims Commission.

                                                 -2-
statutorily-mandated credit for the time he actually served on community corrections. Id. In
addition, Mr. Jackson claimed that, taking into account all applicable credits, his four-year
sentence had expired. Id. The habeas corpus court summarily dismissed the petition,
concluding that Mr. Jackson had failed to state a cognizable claim for habeas corpus relief,
and had failed to establish that his sentence had expired. Id. The court also concluded that
Mr. Jackson had failed to attach to his petition sufficient documentation to support his
claims. Id. Mr. Jackson then filed a motion for relief from judgment pursuant to Rules 7.02
and 60.02 of the Tennessee Rules of Civil Procedure, essentially asking the court to
reconsider its earlier decisions. Id. The habeas corpus court denied the motion, concluding
that the Mr. Jackson’s claims, even if true, would render the judgment “voidable” rather than
void. Id.

       In Jackson, the Tennessee Court of Criminal Appeals reversed the habeas court's
decision. Jackson, 366 S.W.3d at 192. Specifically, the appellate court held that Mr.
Jackson's sentence had expired and that he was entitled to immediate release. Id. The court
directed the circuit court “to file an amended judgment reflecting appropriate application of
earned community corrections credits.” Id.

        In the Claims Commission, Mr. Jackson has asserted that, upon remand, the circuit
court imposed a probationary sentence. Specifically, he claims that, due to the sentencing
errors, he “spent another 13-14 months reporting to the Madison County Probation [and]
Parole, all of which according to the Appeals Court was illegal.” In response to Mr.
Jackson’s claim, the State moved for dismissal under Tennessee Rule of Civil Procedure
12.02(6) for failure to state a claim upon which relief can be granted. In support of its
motion, the State raised the circuit court's judicial immunity as a defense. See Tenn. Code
Ann. § 9-8-307(d) (“The state may assert any and all defenses, including common law
defenses, which would have been available to the officer or employee in an action against
such an individual based upon the same occurrence.”).3 Specifically, the State asserted that
judicial immunity precluded any liability for the sentencing errors.

      Although Mr. Jackson filed his claim pro se, while the State’s motion to dismiss was
pending, he retained counsel, and then filed a response to the State's motion. The response
argued that judicial immunity did not apply to the probationary sentence imposed by the




       3
         The State’s motion also asserted that Mr. Jackson had no claim based on the acts of the
Tennessee Department of Correction. As stated by the Court of Criminal Appeals, “the Department of
Correction is powerless to alter or amend the award of community corrections credit.” Jackson, 366
S.W.3d at 190.

                                               -3-
circuit court upon remand.4 In his response, Mr. Jackson alleged that the circuit court acted
“in the clear absence of jurisdiction when it ordered additional probation following
Claimant's successful petition for writ of habeas corpus.”

        On November 7, 2012, the Claims Commission issued an order, granting in part and
denying in part the State’s motion to dismiss. In its order, the Commission found that the
circuit court's judicial immunity precluded any liability for the alleged sentencing errors,
finding that the circuit court “acted merely in excess of [its] jurisdiction and not outside of
it.” The Claims Commission further stated: “The Tennessee Claims Commission statute
simply does not contain any provision that authorizes suits against the State for actions of
judicial officials acting in their judicial capacity.” Accordingly, the Commission dismissed
Mr. Jackson’s claims concerning the prison's medical treatment because Mr. Jackson had not
complied with the requirements for healthcare-liability actions under Tennessee Code
Annotated Sections 29-26-121, -122. The Commission denied the motion to dismiss with
regard to Mr. Jackson’s allegation that “he suffered personal injury related to defective or
negligently issued prison footwear.

       On December 6, 2012, Mr. Jackson filed a notice of appeal from the Commission’s
November 7, 2012 order. At the time of the filing of the December 6, 2012 notice of appeal,
Mr. Jackson’s prison footwear claim was still pending. On March 14, 2013, this Court
entered a stipulation of dismissal of the December 6, 2012 appeal, stating that the parties had
“agreed to proceed with such claims as survived [the Commission’s November 7, 2012
Order] before proceeding with the appeal.” After the initial appeal (which was commenced
with the filing of the December 6, 2013 notice of appeal) was dismissed, Mr. Jackson chose
to dismiss, with prejudice, the remaining claim regarding the prison footwear.5 This was
reflected in an order of voluntary dismissal, which was entered on September 23, 2013; it is
undisputed that the September 23, 2013 order of voluntary dismissal is the final order
appealed in this case. Mr. Jackson filed his notice of appeal from the September 23, 2013


        4
          We note that Mr. Jackson’s response did not address the criminal court's failure to award
community corrections credits following the probation violation. However, Mr. Jackson conceded that
this sentencing error was made within the criminal court's jurisdiction and was, therefore, covered by
judicial immunity.
        5
           Because the initial appeal was dismissed by stipulation of the parties, the December 6, 2012
notice of appeal cannot be considered a prematurely filed notice of appeal under Tennessee Rule of Appellate
Procedure 4(d), which states that “[a] prematurely filed notice of appeal shall be treated as filed after the
entry of the judgment from which the appeal is taken and on the day thereof.” Unlike the first appeal, which
was taken from the November 7, 2012 order granting in part and denying in part the State’s motion to
dismiss, the instant appeal arises from the order of voluntary dismissal, which was filed on September 23,
2013. Accordingly, the only applicable notice of appeal is that filed on October 25, 2013.

                                                    -4-
order on October 25, 2013.

       Mr. Jackson raises one issue for review as stated in his brief:

              Whether the Tennessee Claims Commission erred in applying
              judicial absolute immunity to the Circuit Court of Madison
              County, when judicial immunity does not apply to actions taken
              in clear absence of subject matter jurisdiction, the Circuit Court
              overruled a decision of the Tennessee Court of Criminal
              Appeals, and the plain language of the Tennessee Code and the
              Tennessee Rules of Appellate Procedure states that the Circuit
              Court lacks appellate jurisdiction over cases from the Court of
              Criminal Appeals.

      Before turning to the substantive issue, we first consider the jurisdictional question
of whether Mr. Jackson’s notice of appeal was timely filed. Rule 4 of the Tennessee Rules
of Appellate Procedure governs the filing of the notice of appeal in this case. According to
Rule 4(a):

              In an appeal as of right to the Supreme Court, Court of Appeals
              or Court of Criminal Appeals, the notice of appeal required by
              Rule 3 shall be filed with and received by the clerk of the trial
              court within 30 days after the date of entry of the judgment
              appealed from; ....

        The time limit for filing a notice of appeal is mandatory and jurisdictional. Albert v.
Frye, 145 S.W.3d 526, 528 (Tenn. 2004); Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn.
2003). This Court can neither waive nor extend the time period. Tenn. R. App. P. 2 and
21(b); Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 869 (Tenn. Ct. App.
2008); Jefferson v. Pneumo Serv. Corp., 699 S.W.2d 181, 184 (Tenn. Ct. App.1985). The
failure to file a timely notice of appeal deprives this court of jurisdiction to hear the matter.
Flautt, 285 S.W.3d at 869.

        Here, the final order was filed on September 23, 2013. Mr. Jackson’s notice of appeal
is file-stamped “October 25, 2013.” The certificate of service for the notice of appeal
indicates that it was mailed to opposing counsel on October 23, 2013. In his brief, Mr.
Jackson contends that the fact that the notice was mailed to opposing counsel on October 23,
2013 makes his notice of appeal timely. We respectfully disagree. Under Tennessee Rule
of Appellate Procedure 4(a), supra, in order to be timely, the notice of appeal must be “filed
with and received by the clerk of the trial court within 30 days after the date of entry of the

                                               -5-
judgment appealed from. . . .” (Emphasis added). Filing a notice of appeal with the trial
court is a separate and distinct action from the timely service of the notice of appeal on an
opposing party. Tenn. R. App. P. 3(e) (“An appeal as of right to the . . . Court of Appeals.
. .shall be taken by timely filing a notice of appeal with the clerk of the trial court as provided
in Rule 4 and by service of the notice of appeal as provided in Rule 5.”) (Emphasis added).6
Although these acts are not mutually exclusive, one will not suffice for the other. Under
Tennessee Rule of Appellate Procedure 4(a), the timeliness of the notice of appeal is dictated
by its filing date and not by the date service was made on the opposing party. Accordingly,
the fact that Mr. Jackson’s notice of appeal was filed on October 25, 2013, i.e., two days
beyond the thirty-day period from the entry of the September 23, 2013 final order, renders
the notice of appeal ineffective to confer jurisdiction on this Court, and thus is fatal to his
appeal.

       The appeal is hereby dismissed for failure to file a timely notice of appeal. Costs are
assessed to the Appellant, Herbert Jackson. Because Mr. Jackson is proceeding in forma
pauperis in this appeal, execution may issue for costs if necessary.




                                                 _______________________________________
                                                 KENNY W. ARMSTRONG, SPECIAL JUDGE




        6
          The Advisory Commission Comments to Tennessee Rule of Appellate Procedure 3(e) state that
“[t]he intent of this subdivision is to provide a uniform and simplified method of taking an appeal as of
right. This subdivision combined with Rules 4 and 5 require that a notice of appeal be filed with the clerk
of the trial court within the time prescribed for taking an appeal and that a copy of the notice of appeal
be served on all parties.” (Emphasis added).

                                                    -6-
