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Garrett v. Tennessee Board of Parole

Court of Appeals of Tennessee, Nashville

October 10, 2017

GARY WAYNE GARRETT
v.
TENNESSEE BOARD OF PAROLE

          Assigned on Briefs April 3, 2017

         Appeal from the Chancery Court for Davidson County No. 16-355-I Claudia Bonnyman, Chancellor

         This appeal involves an incarcerated inmate's filing of a petition for writ of certiorari, claiming that the Tennessee Board of Parole acted arbitrarily and without material evidence in denying his request for parole. The respondent filed a motion to dismiss, claiming that the time for filing such a petition had passed. The trial court dismissed the petition as untimely. The petitioner appeals. We reverse and remand for further hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed; Case Remanded

          Gary Wayne Garrett, Clifton, Tennessee, Pro Se.

          Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Charlotte Davis, Assistant Attorney General, Nashville, Tennessee, for the appellee, the Tennessee Board of Parole.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Brandon O. Gibson, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Gary Wayne Garrett ("Petitioner") is an inmate housed at the South Central Correctional Facility in Clifton, Tennessee. He was convicted of 16 counts of "various charges, " including first degree burglary, petit larceny, rape, aggravated rape, and attempted first degree burglary while employing a firearm. Petitioner was sentenced in 1986 to an aggregate sentence of 119 years with parole eligibility.

         On December 2, 2015, Petitioner was granted a parole hearing, his second, by the Tennessee Board of Parole ("the Board"). The Board denied parole on the ground that his "release from custody at this time would depreciate the seriousness of the crime of which [he] stands convicted or promote disrespect of the law." Petitioner appealed the Board's decision. His appeal was denied on January 28, 2016. Accordingly, the time for filing a petition for writ of certiorari expired on March 28, 2016, pursuant to Tennessee Code Annotated section 27-9-102.[1]

         On March 28, 2016, Petitioner filed a petition for writ of certiorari by placing the document in the prison mailroom. See Tenn. R. Civ. P. 5.06. The petition, which named the Board as the respondent, was not notarized. Petitioner attached several supporting documents to the petition and an affidavit explaining that he was denied access to a notary because the facility was placed on lockdown the week prior to the expiration of the statute of limitations. The Clerk and Master returned the documents to Petitioner with instructions to sign and notarize. Petitioner complied and had the petition notarized on April 5, 2016. The record is unclear as to whether the petition was returned to the mailroom on April 5; however, the record reflects that the petition was received by the Chancery Court on April 11 and marked filed on April 12.

         The Board filed a motion to dismiss, claiming that the court lacked subject matter jurisdiction because the petition was not filed within 60 days of the denial of his appeal. The Board explained that the petition did not contain the proper notarization until April 5, 68 days after entry of the final administrative order appealed from. Petitioner responded by asserting that his petition was timely as evidenced by his placement of the initial petition in the prison mailroom on March 28. He asserted that his failure to obtain the proper notarization should be characterized as excusable neglect under the circumstances. He further alleged that he filed an inmate grievance form with the Tennessee Department of Correction ("TDOC"), documenting his attempt to obtain a notary and the denial of the same within the applicable statute of limitations. He noted that he had yet to receive a response as of June 10, 2016.

         The trial court dismissed the petition on July 22, 2016, finding that the initial filing was timely but unverified, thereby requiring dismissal for lack of jurisdiction. The court noted that even if it were to consider the initial filing as a request for extension of time, the request was not submitted to the court in time to grant an extension. The court further found that the second filing, ...


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