ORDERS:
ORDER OF DISMISSAL
Grievance No. McCI-0259-00
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 August 30, 2000. Given such a receipt date, the thirty days
for filing ended on September 29, 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
August 30, 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.
AND IT IS SO ORDERED
______________________________
RAY N. STEVENS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Dated: March 22, 2001
Columbia, South Carolina |
