ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before the Administrative Law Judge Division ("Division") pursuant to Respondent's Motion to Dismiss filed August
28, 2000. Respondent asserts the Division lacks jurisdiction because Appellant failed to timely file a Notice of Appeal with the
Division.
According to ALJD Temporary Rule 62, the Notice of Appeal must be filed with the Division within thirty days of receipt of the
decision from which the appeal is taken. In this case, Appellant is appealing Respondent's final decision dated May 26, 2000, and
received by Appellant on June 13, 2000. The Notice of Appeal, therefore, was due on or before July 13, 2000. Appellant, however,
did not file the Notice of Appeal until July 17, 2000. ALJD Temporary Rule 65 provides "an Administrative Law Judge may dismiss
an appeal for failure to comply with any of the rules of procedure for appeals, including the failure to comply with any of the time
limits provided by this section." Pursuant to this rule, the undersigned can dismiss this case for failure to timely file a Notice of Appeal
as required by ALJD Temporary Rule 62.
Furthermore, the failure to timely file a Notice of Appeal deprives a court of appellate jurisdiction. See Dewitt v. South Carolina
Dep't of Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980) (a circuit court's jurisdiction over a magistrate's decision is
appellate in nature and a circuit court does not have the right to extend the time within which an appeal may be taken from the
magistrate's decision). Because the Division acts as an appellate court in inmate cases filed pursuant to Al-Shabazz v. State, 338 S.C.
354, 527 S.E.2d 742 (2000), the Division lacks jurisdiction in cases where the inmate fails to timely file a Notice of Appeal. As a
result, the Division lacks jurisdiction in this case.
IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted and Appellant's appeal is dismissed with prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
August 29, 2000
Columbia, South Carolina |
