ORDERS:
ORDER OF DISMISSAL
Grievance No. BRCI-0332-00
I. Introduction
South Carolina Department of Corrections (DOC) brings this motion to dismiss on the ground that Alfred D. Crim (Crim) 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 Crim filed within thirty days of receipt of the DOC decision.
While Crim refused to sign his acceptance of the DOC decision, the Step 2 Grievance form shows that Crim had receipt of the DOC
decision on October 30, 2000. Given such a receipt date, the thirty days for filing ended on November 29, 2000. Here, as evidenced
by a mailroom date received stamp, Crim deposited the Notice of Appeal with the mailroom of the Broad River Correctional Institute
on December 1, 2000. Thus, even using December 1, 2000 as the filing date, Crim's filing is fatally late.
To determine a late filing, TR 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). The fact that Crim refused to sign his
acknowledgment of receipt does not dismiss the fact that Crim did in fact receive the order on October 30, 2000. Accordingly, Crim
had receipt on October 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: April 4, 2001
Columbia, South Carolina |
