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SC Administrative Law Court Decisions

Robert Watson, #226445 vs. SCDOC

South Carolina Department of Corrections

Robert Watson, #226445

South Carolina Department of Corrections




On October 26, 2000, Respondent South Carolina Department of Corrections ("Respondent" or "Department") filed a Motion to Dismiss this matter. Respondent seeks a dismissal on the grounds that Appellant failed to file and serve the Notice of Appeal within thirty (30) days of written notice of Respondent's final decision. Respondent seeks a dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000) and SCRCP 12(b)(1), and (6). By Order dated October 31, 2000, the Appellant was directed to file a response to the Motion to Dismiss, including proof of service of the Notice of Appeal and supporting documents upon the Respondent.

On November 8, 2000, Appellant filed his response to the Motion to Dismiss but provided no evidence that the Notice of Appeal had been timely filed and served.

This Division has jurisdiction to hear this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the S.C. Supreme Court stated that:

The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice of Department's final decision.

Id. at 33 (emphasis added). The Court in Al-Shabazz cited ALJD Rule 33 in support of this requirement. The Division has since adopted TR 62 for use in lieu of ALJD Rule 33. The language in TR 62 is virtually identical to ALJD Rule 33 (1). TR 62 provides that:

The notice of appeal from the final decision of an agency to be heard by the [Division] shall be filed with the Division and a copy served on each party and DOC within thirty (30) days of receipt of the decision from which the appeal is taken.. . .

TR 62 (emphasis added).

As set forth in Al-Shabazz and TR 62, the Notice of Appeal must be filed within thirty (30) days of the Appellant's receipt of the final decision of the Department.

Respondent moves to dismiss this matter on the grounds that Appellant's failure to timely file the Notice of Appeal divests the ALJD of subject matter jurisdiction. Although the ALJD has subject matter jurisdiction over this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the Notice of Appeal was not filed within the time as required in Al-Shabazz and TR 62, and therefore Appellant has not invoked the appellant jurisdiction of this tribunal.

This matter must be dismissed for lack of appellate jurisdiction. Case law supports the proposition that a court must dismiss an appeal where the appellant fails to file and serve a party with the notice of appeal in a timely manner.

It is also well-established that a court does not have the authority to extend the time for taking an appeal from a decision of an administrative agency. e.g., Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnette v. S.C. State Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969) (addressing an appeal from the Board of Condemnation). This tribunal recognizes the harsh result of this decision but is constrained by the rules of this tribunal and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994) [recognizing harsh result of dismissing a case where the appellant filed a summons and complaint after serving the other party instead of filing the summons and complaint before such service, as required by SCRCP 5(d)].

IT IS THEREFORE ORDERED that Respondent's Motion to Dismiss is granted and that the above-captioned case bearing Docket Number 00-ALJ-04-00744-AP is hereby dismissed. IT IS SO ORDERED.




November 21, 2000

Columbia, South Carolina

1. Pursuant to the opinion of the Supreme Court in Al-Shabazz, temporary rules were adopted by the ALJD to apply exclusively to appeals from final decisions of the Department of Corrections. These rules are virtually identical to corresponding ALJD appellate rules 33-41.

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