JONATHAN HYLER,                       )
                                      )
      Plaintiff/Appellant,            )
                                      )   Davidson Chancery Court
                                      )   No. 96-537-I
VS.                                   )
                                      )   Appeal No.
                                      )   01A01-9610-CH-00482
CHARLES TRAUGHBER, Chairman,          )
Tennessee Board of Paroles, et al.,   )

      Defendants/Appellees.
                                      )
                                      )                      FILED
                                                                February 7, 1997

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

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

           HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



Jonathan Hyler #130123
Turney Center Prison
Route 1
Only, TN 37140-9709
ATTORNEY FOR PLAINTIFF/APPELLANT


Teresa S. Thomas #12788
Counsel for the State
404 James Robertson Parkway
Suite 2000
Nashville, TN 37243
ATTORNEY FOR DEFENDANTS/APPELLEES


                        REVERSED AND REMANDED.



                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION


CONCUR:

SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL., JUDGE
JONATHAN HYLER,                                )
                                               )
        Plaintiff/Appellant,                   )
                                               )      Davidson Chancery Court
                                               )      No. 96-537-I
VS.                                            )
                                               )      Appeal No.
                                               )      01A01-9610-CH-00482
CHARLES TRAUGHBER, Chairman,                   )
Tennessee Board of Paroles, et al.,            )
                                               )
        Defendants/Appellees.                  )



                                        OPINION


        The captioned petitioner has appealed from the judgment of the Trial Court

dismissing his petition for certiorari from the action of the Board of Paroles denying his

application for parole from the custody of the Department of Correction.



        The petition, filed on February 20, 1996, is captioned “Petition for Cetiorari” (sic),

but its first paragraph states:

                NOW COMES.....The Petitioner-Plaintiff Attorney Pro se,
                a Bona Fide pauper who avers this Court has Jurisdiction to
                entertain this meritious plea for Judicial Review under TCA
                27-8-101 (Wallace Vs Bell 19 TAM 42-18. 9-21-1994) in
                that the Said Parole Board Exceeded its Jurisdiction, and
                Acted Illegally, Fraudently, and Arbitrarily in reaching its
                decision to Deny this Petitioner-Plaintiff A Parole.

                Petitioner-Plaintiff Appealled (sic) that decision 12-9-1995
                was denied February 1st 1996. Exibit “D” (sic)

                HISTORY

                Petitioner-Plaintiff was convicted after a Jury Trial in
                Davidson County July 1989, of one count of aggravated
                rape and two counts of rape and a 30 year sentence for the
                alledged (sic) aggravated rape and five years each on each
                count of rape and the sentences run concurrently.


        Exhibit 4 to the petition appears to be a “Request for Appeal” signed by petitioner on

December 14, 1995, and referring to a hearing held on October 30, 1995. The “Request for

Appeal” states:


                                               -2-
       I am requesting an appeal of that hearing based on the
       following:

       (1) Copys (sic)of Filings in Court Submitted/Not Guilty
       of Crime/A Crime that never happened....The Prejudice
       of the Case/Davidson County That Trial Counsel could
       not Investigate and Prepare a Defense, a Manifest of
       Injustice since July 25, 1989 (2) ...The Prejudice of the
       Hearing officer, as if, no more than a ...Ms. .. Feminist-
       Gender who demanded after No Guilty Pleas a Guilty
       Admittance before her demanded before even a parole
       could be considered, And some how has a Crystal Ball,
       that says that a white Female State Employee, like the
       Hearing Officer would lie after Consent Sex, and a
       boyfriend arrives as I left, beats her up, to compensate
       Bruises, says rape.



There is no other indication of the proceeding in which the appeal was instituted.



Defendants filed a motion to dismiss stating:

          Come the respondents, by and through the office of
       the Tennessee Attorney General, and move the Court to
       dismiss the petition in this case pursuant to Rule 12.02
       of the Tennessee Rules of Civil Procedure. The petition
       was not filed within the sixty-day time limit provided by
       Tenn. Code Ann. § 27-9-102. The review sought by the
       petition is beyond the scope of review under the common-
       law writ of certiorari and the petitioner has no
       constitutionally protected right to parole. The petition
       should be dismissed because the petitioner has failed to
       state a claim upon which relief can be granted.

          In support of this motion the respondents rely upon the
       affidavit of Terry Maniker, Legal Staff of the Tennessee
       Board of Paroles, and the memorandum of law filed with
       this motion.


The attached affidavit states:

       2.      I am on the legal staff of the Board of Paroles and
               am one of the custodians of the files.

       3.      I have reviewed the file of Inmate Jonathan Avery
               William Hyler/hereafter “Hyler,” inmate number
               130123.

       4.      On July 25, 1989, a jury found Hyler guilty of
               Aggravated Rape (Count 1) and Rape (counts 2
               and 3).



                                      -3-
               5.      Hyler was sentenced to 30 years, 5 years, and 5
                       years respectively, each sentence to be served
                       concurrently with the other.

               6.      On October 30, 1995, Hearing Officer Beth
                       Williams conducted a parole eligibility hearing
                       for Hyler and her non binding recommendation
                       was to decline parole, based on “seriousness
                       of offense” and set a rehearing date in
                       November, 2000. (Affidavit Exhibit A, Board
                       Action Sheet).

               7.      On November 3, 1995, Tennessee Board of
                       Paroles Chairman, Charles Traughber cast the
                       final vote to accept the recommendation of the
                       Hearing Officer. (Exhibit A).



       The “Memorandum of Law” is not included in the record on appeal. Exhibit A to the

affidavit is a copy of a “Notice of Board Action Parole Release Hearing” containing three sets

of initials dated 11-2-95, 11-3-95 and 11-3-95.



       The order of the Trial Court states:

                  The respondent has filed a motion to dismiss this
               petition for writ of certiorari due to the fact that the
               petitioner failed to file this cause within sixty days
               from the entry of the Board’s final decision to deny
               him parole. In this cause, the Board’s final order
               was issued on November 3, 1995. On January 2,
               1996, the Board’s decision became final. This
               petition was filed on February 20, 1996. Thus, this
               petition was filed more than sixty days after the
               Board’s decision.

                  The petitioner alleges that he is required to
               exhaust administrative appeal procedures prior to
               petitioning for a writ of certiorari in this Court.
               More specifically, the petitioner alleges that
               because he filed a timely motion to appeal with the
               Board, he in fact filed within the sixty day time
               limit. The petitioner is in error. The sixty-day time
               period to file a writ of certiorari is not tolled by
               the Board of Parole’s internal procedures. The
               petitioner can pursue both remedies, but these
               remedies are independent of each other.

                  The Court finds that the petitioner has failed to
               file this petition for writ of certiorari within the
               statutory time period. Thus, this Court is without
               jurisdiction to review his petition. For the fore-

                                               -4-
               going reason, the respondent’s motion is dismiss
               is GRANTED. Petitioner is assessed state
               litigation taxes.



       The “Motion to Dismiss” refers to TRCP Rule 12.02, and states that the petition fails

to state a claim for which relief can be granted. However, the motion is supported by an

affidavit which indicates that the petition was not timely filed. It also appears that the

decision of the Trial Court was based upon the affidavit as to timeliness. The judgment

should therefore be reviewed as a summary judgment as provided by TRCP Rule 56. (See

last sentence of Rule 12.02).



       A petition for certiorari must be filed within 60 days from the entry of the order or

judgment from which relief is sought. T.C.A. § 27-9-102; Thandivre v. Traughber, Tenn.

App. 1994, 909 S.W.2d 802.



       The affidavit, quoted above, does not comply with TRCP Rule 56.05 and does not

state the date of entry of the final action of the Board. The date of the casting of the last vote

of a member of the Board is not necessarily the date of the final action of the Board. Due

process requires a formal order communicated to the affected party.



       There is evidence that some form of administrative appeal was pursued, and the Trial

Judge held that the pursuit of an administrative appeal did not delay the running of the 60 day

limit for certiorari. This Court is unaware of any authority to this effect, and none has been

cited by appellees. This Court has held in unpublished opinions that the sixty-day period for

seeking judicial relief begins upon final action upon the administrative appeal.



       The dismissal is based upon the untimeliness of the petition which is not shown by

the allegations of the petition or the evidence supporting the motion. The motion should

have been overruled to allow further proceedings to determine the date of entry of the order



                                               -5-
of the Board, the regulatory authorization and date and nature of the disposition of the appeal.

The Trial Court did not rule upon the sufficiency of the allegations of the complaint. Upon

remand, if it is determined that the application is timely, the Trial Court should then consider

and determine whether the petition states a claim for which relief can be granted.



       The judgment of the Trial Court is reversed. Costs of this appeal are assessed to the

appellees. The cause is remanded to the Trial Court for further proceedings.




                          REVERSED AND REMANDED


                                              _______________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
BEN H. CANTRELL, JUDGE




                                              -6-
