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SC Administrative Law Court Decisions

Thomas M. Stutts vs. SCDOC

South Carolina Department of Corrections

Thomas M. Stutts

South Carolina Department of Corrections



Grievance No. McCI-343-00

I. Introduction

South Carolina Department of Corrections (DOC) brings this motion to dismiss on the ground that Thomas M. Stutts (Stutts) failed to timely file the notice of appeal. After a review of the arguments, the motion is granted.

II. Analysis

Under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), jurisdiction over inmate appeals from DOC decisions involving certain specified non-collateral matters vests in the Administrative Law Judge Division (ALJD). Appeals must be filed within the time limits set by ALJDTR 62 since an untimely challenge prohibits the hearing body from deciding the matter. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. S.C. Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949). ALJDTR Rule 62 identifies the time to challenge period as follows:

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).

The issue here is whether Stutts filed within thirty days of receipt of the DOC decision.

The Step 2 Grievance form shows that Stutts acknowledged receipt of the DOC decision on October 21, 2000. Given such a receipt date, the thirty days for filing ended on November 20, 2000. Thus, with a notice of appeal in this case having been filed on November 30, 2000, Stutts's filing would be fatally late.

However, to counter such a result, Stutts argues that he did not have receipt of the DOC decision on the date that he signed acknowledging receipt. Rather, he argues that when he received the written DOC decision he was not allowed to retain possession. Instead, he had several days in which to return the document to a DOC employee for further processing. Under these circumstances, Stutts argues that the date of receipt for purposes of ALJDTR Rule 62 means the date upon which the inmate obtains permanent possession of the document and not just temporary possession. I cannot agree.

Rule 62 begins the period for filing a notice of appeal with the date of receipt. Receipt is achieved when possession of the document passes from one to another. See Gerner v. Vasby, 250 N.W.2d 319, 324 (1977) (where delivery or change of possession from seller to buyer was required to accomplish receipt of goods). While receipt involves possession, the two do not subsume the same time-line. Indeed, the act of receipt comes to an end the moment after possession is obtained while possession itself may or may not continue. See State v. Knowles 2000 WL 1421350, Iowa App., Sept. 27, 2000 (where "[t]he trial court's definition adequately and properly differentiated 'receive' from 'possess' by pointing out that receiving is the act by which one acquires something, that is the act by which one comes into possession (rather than the possession itself)."). In short, the fact of interruption of possession does not remove the fact of receipt of possession. Accordingly, Stutts had receipt on October 21, 2000 and failed to file a notice of appeal within the required thirty day period.

III. Order

DOC's motion to dismiss is hereby GRANTED due to a lack of jurisdiction caused by a late filing of a notice of appeal.




Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

Dated: March 22, 2001

Columbia, South Carolina

Brown Bldg.






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