       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                               FL E
                                                I D
JAMES R. REYNOLDS,               )            D e c e m b e r 1 0 , 1 9 9 8
                                 )
      Plaintiff/Appellant,       )              C e c il W . C r o w s o n
                                 )           A p p e lla te C o u r t C le r k
                                 )   Davidson Chancery
VS.                              )   No. 96-801-II
                                 )
                                 )   Appeal No.
TENNESSEE BOARD OF PAROLES,      )   01A01-9701-CH-00016
et al.,                          )
                                 )
      Defendants/Appellees.      )



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

        THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR



For Plaintiff/Appellant:             For Defendants/Appellees:

James R. Reynolds                    John Knox Walkup
Pro Se                               Attorney General and Reporter

                                     John R. Miles
                                     Counsel for the State




                    AFFIRMED AND REMANDED




                                 WILLIAM C. KOCH, JR., JUDGE
                           MEMORANDUM OPINION

       This appeal involves an inmate’s challenge to the denial of his application for
parole by the Tennessee Board of Paroles. After serving approximately ten years of
a 35-year sentence for aggravated rape, the inmate filed a petition for a common-law
writ of certiorari in the Chancery Court for Davidson County asserting that the
Tennessee Board of Paroles was illegally and arbitrarily declining to honor his plea
bargain agreement.          The trial court dismissed the petition on the grounds that it
failed to state a claim upon which relief could be granted and because it was not
timely filed. The inmate has appealed pro se. We concur that the petition was not
timely filed and affirm its dismissal in accordance with Tenn. Ct. App. R. 10(b).1


                                                 I.


       In December 1984, James R. Reynolds sexually abused his then seven-year-old
daughter and six-year-old son. After his daughter complained to one of her teachers,
the Coffee County Sheriff arrested Mr. Reynolds, and Mr. Reynolds was later charged
with two counts of aggravated rape. Mr. Reynolds and his appointed counsel later
negotiated a plea agreement, and on January 23, 1986, Mr. Reynolds pleaded guilty
to aggravated rape in the Criminal Court for Coffee County and was sentenced to
thirty-five years in the custody of the Department of Correction as a Range 1,
standard offender. Mr. Reynolds is currently incarcerated in the Lake County
Regional Correctional Facility. The Tennessee Board of Paroles considered Mr.
Reynolds for parole in September 1990 and again in June 1993 but on each occasion
declined to release him on parole.2




       1
           Tenn. Ct. App. R. 10(b) provides:

               The 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 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 a subsequent
       unrelated case.
       2
        Mr. Reynolds also asserts in his reply brief that the Board of Paroles declined to parole him
in September 1996 while this litigation was pending.

                                                -2-
       On March 12, 1996, Mr. Reynolds filed a petition for a common-law writ of
certiorari in the Chancery Court for Davidson County. He alleged that during the
1986 negotiations for his plea agreement, he and the District Attorney General agreed
that he would only be required to serve ten and one-half years in prison and that this
time could be further shortened by whatever sentence reduction credits he earned
while incarcerated. He characterized this agreement as a legally binding contract and
requested the Court to order the Board of Paroles to release him on parole.3 When the
Board moved to dismiss his petition, Mr. Reynolds filed his own motion for summary
judgment. On August 28, 1996, the trial court entered an order dismissing the
petition for failure to state a claim upon which relief can be granted and because the
petition was not timely filed.


                                             II.


       The controlling issue on this appeal is the timeliness of Mr. Reynolds’s petition
for common-law writ of certiorari. Tenn. Code Ann. § 27-9-102 (1980) requires that
a petition for writ of certiorari be filed within sixty days from the entry of the order
or judgment complained of. The failure to file a petition within the time allowed by
statute prevents the trial court from whom the writ is sought from exercising
jurisdiction over the petitioner’s claim. See Thandiwe v. Traguhber, 909 S.W.2d 802,
804 (Tenn. Ct. App. 1994); Wheeler v. City of Memphis, 675 S.W.2d 4, 6 (Tenn. Ct.
App. 1984).


       Mr. Reynolds’s last hearing before the Board of Paroles occurred on or around
June 15, 1993. Although a copy of the order denying Mr. Reynolds parole is not in
the record, Mr. Reynolds’s sworn petition states that “[o]n June 15, 1993, the
members of the Tennessee Board of Parole . . . refused to honor the contract the State
made with the Petitioner.” Thus, for the purpose of this appeal, we will presume that
the Board acted on the date identified in Mr. Reynolds’s petition. Using this date as
a beginning point, it is inescapable that Mr. Reynolds’s petition for writ of certiorari



       3
        Mr. Reynolds provided none of the independent corroborating evidence of this agreement
described in Ringling v. Tennessee Bd. of Paroles, No. 01A01-9708-CV-00416, 1997 WL 718419,
at *3 (Tenn. Ct. App. Nov. 19, 1997), perm. app. dismissed, (Tenn. May 26, 1998).

                                             -3-
filed in March 1996 came two years too late and that the trial court properly
dismissed the petition for not being timely filed.


                                         III.


      We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We tax the costs of this appeal to James R.
Reynolds for which execution, if necessary, may issue.




                                                ______________________________
                                                WILLIAM C. KOCH, JR., JUDGE


CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
SAMUEL L. LEWIS, JUDGE




                                         -4-
