Opinion
NO. 2015 CA 1041
12-23-2015
RAYMOND PAYTON v. LOUISIANA PAROLE BOARD
Raymond Payton Winnfield, Louisiana Plaintiff/Appellant, In Proper Person James D. "Buddy" Caldwell Attorney General Patricia H. Wilton, Assistant Attorney General Baton Rouge, Louisiana Attorney for Defendant/Appellee, Louisiana Department of Public Safety and Corrections, Division of Probation and Parole
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana
Trial Court No. C629596
The Honorable R. Michael Caldwell, Judge Presiding Raymond Payton
Winnfield, Louisiana Plaintiff/Appellant,
In Proper Person James D. "Buddy" Caldwell
Attorney General
Patricia H. Wilton,
Assistant Attorney General
Baton Rouge, Louisiana Attorney for Defendant/Appellee,
Louisiana Department of Public
Safety and Corrections, Division of
Probation and Parole BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. CRAIN, J.
Raymond Payton filed an appeal in the district court seeking review of the Louisiana Parole Board's revocation of his parole. According to the record before us, Payton was convicted of attempted second degree murder and two counts of attempted armed robbery, and was released on parole in 2003. The Parole Board's records reflect that in 2013, Payton pled guilty to violating the terms of his parole and, after waiving both a preliminary and final revocation hearing, his parole was revoked. Payton's appeal in the district court alleged that he did not plead guilty and that his parole revocation should be reversed due to constitutional violations, including the denial of a revocation hearing.
Appeal of a parole revocation decision is governed by Louisiana Revised Statute 15:574.11. In the limited instances in which an appeal is allowed, it must be taken within the ninety-day peremptive period established by Section 15:574.11. See Brown v. LeBlanc, 10-0491 (La. App. 1 Cir. 10/29/10), 48 So. 3d 419, 420. Peremption is a period of time fixed by law for the existence of a right. La. Civ. Code art. 3458. A peremptive period may not be renounced, interrupted, or suspended. La. Civ. Code art. 3461. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. Civ. Code art. 3458. Thus, if an offender fails to appeal the Parole Board's decision to revoke his parole within ninety days, his right to appeal ceases to exist, and the reviewing court is without jurisdiction to consider the appeal. See Brown, 48 So. 3d at 421.
Louisiana Revised Statute 15:574.11 pertinently provides:
D. Petitions for review that allege a denial of a revocation hearing under the provisions of [Louisiana Revised Statute] 15:574.9 shall be subject to a peremptive period of ninety days after the date of revocation by the committee on parole. When revocation is based upon the conviction of a new felony while on parole, the ninety-day peremptive period shall commence on the date of final judgment of the new felony. Petitions for review filed after this peremptive period shall be dismissed with prejudice. Service of process of petitions for review shall be made upon the chairman of the committee on parole or his designee. The only proper party defendant in an action under this Section shall be the committee on parole.
According to Payton's appeal and a letter of notification sent to Payton by the Parole Board, Payton's parole was revoked on October 30, 2013. Other documentation in the record before us indicates that Payton's parole was revoked on November 12, 2013. Payton's appeal form was dated March 8, 2014, and filed with the district court on April 7, 2014. Whether the actual date of Payton's parole revocation was October 30 or November 12, 2013, his appeal was filed well after the ninety-day peremptive period for appealing expired. Upon expiration of the peremptive period, Payton's right to appeal was extinguished, and the district court lacked jurisdiction to consider the merits of his appeal. Accord Brown, 48 So. 3d at 421.
The judgment of the district court affirming the Parole Board's decision is void for lack of jurisdiction and is vacated. This court, having nothing to review, is required to dismiss this appeal without consideration of its merits. See Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-0185 (La. 10/16/01), 797 So. 2d 656, 663; City of Baton Rouge v. Bethley, 09-1840 (La. App. 1 Cir. 10/29/10), 68 So. 3d 535, 539, writ denied, 11-1884 (La. 11/4/11), 75 So. 3d 927. Costs of this appeal are assessed to Raymond Payton. This memorandum opinion is issued in compliance with Uniform Rules - Courts of Appeal, Rule 2-16.1B.
JUDGMENT VACATED; APPEAL DISMISSED.