Opinion
No. 2010 CA 1692.
March 25, 2011.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, LOUISIANA DOCKET NUMBER 579,149 HONORABLE TODD HERNANDEZ, JUDGE PRESIDING.
Harold D. Register, Jr., Lafayette, LA, Counsel for Plaintiff/Appellant, Stephen Sams.
Patricia H. Wilton, Baton Rouge, LA, Counsel for Defendant/Appellee, Louisiana Parole Board.
BEFORE: WHIPPLE, McDONALD, AND McCLENDON, JJ.
Stephen Sams, an inmate in the custody of the Louisiana Department of Public Safety and Corrections ("the DPSC"), filed suit in district court, seeking to challenge the decision of the Louisiana Parole Board ("the Parole Board") to revoke his parole. The Parole Board filed a motion to dismiss the suit on the basis that the petition was not filed within the ninety-day peremptive period set forth in LSA-R.S. 15:574.11. From the district court's judgment dismissing his suit as untimely, Sams appeals. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In October 2006, Sams, who was serving a sentence for forcible rape, was placed on parole for a period of twenty years. On February 26, 2008, the DPSC issued a warrant for Sams's arrest on the basis that he had violated his parole. Specifically, Sams was charged by bill of information with forcible rape, which allegedly occurred on February 21, 2008. Additionally, Sams was in possession of a knife at the time he allegedly committed the rape. Accordingly, he was charged with violating two conditions of his parole: condition 8, requiring that he refrain from engaging in any type of criminal conduct; and condition 10, requiring that he refrain from having firearms or dangerous weapons in his possession or control.
Sams was initially arrested on February 21, 2008, the date of the alleged offense, on charges of aggravated rape and aggravated kidnapping. However, the Iberia Parish District Attorney's Office subsequently accepted the charge as forcible rape. The aggravated kidnapping charge was refused when it was determined that the alleged kidnapping occurred in Lafayette Parish.
The Parole Board conducted preliminary hearings on August 5 and 14, 2008, and a final parole revocation hearing on October 16, 2008. At the hearing, Sams testified that he and his wife had had an argument and that he then went downtown and did something "stupid." However, he denied raping anyone. Nonetheless, with regard to the knife in his possession or control, Sams admitted that he had a knife in his vehicle at the time he was arrested. He claimed that the knife was in the vehicle when he purchased the vehicle and that, while he knew he should have discarded the knife, he admittedly did not. He further acknowledged that the knife had been in his possession for approximately four months prior to the incident in question. At the conclusion of the final revocation hearing, the Parole Board voted to revoke Sams's parole.
Sams further acknowledged that the knife in his possession had a 6-to 7-inch blade.
Thereafter, on May 29, 2009, Sams filed a petition for judicial review of the Parole Board's decision in the district court. Sams contended that he was not afforded a fair hearing and that his parole should not have been revoked because the forcible rape charge was dismissed.
According to the date stamps on the petition, Sams's petition was received by the district court on May 29, 2009, and was filed by the clerk of court on June 8, 2009.
The forcible rape charge was dismissed on August 29, 2008. The record on appeal indicated that the charge was nolle prossed due to inability to locate the victim for trial.
The Parole Board filed a motion to dismiss the petition, contending that LSA-R.S. 15:574.11 sets forth a ninety-day peremptive period within which a parolee may seek review of the Parole Board's decision to revoke the inmate's parole. The Parole Board asserted that because Sams's petition was not filed until approximately seven months after his parole was revoked, LSA-R.S. 15:574.11 required that Sams's petition "shall" be dismissed with prejudice.
Following a hearing in the district court, the commissioner recommended that Sams's petition be dismissed with prejudice as untimely. In accordance with the commissioner's recommendation, the district court rendered judgment on May 10, 2010, granting the Parole Board's motion to dismiss and dismissing Sams's petition with prejudice. From this judgment, Sams appeals, contending that the district court erred in granting the Parole Board's motion to dismiss because the ninety-day peremptive period of LSA-R.S. 15:574.11(D) applies to petitions for review that allege a denial of a revocation hearing and, thus, has no applicability to the petition for review filed herein.
DISCUSSION
Louisiana Revised Statute 15:574.11 sets forth the procedure by which a parolee may seek review of the revocation of his parole and provides, in pertinent part, as follows:
A. Parole is an administrative device for the rehabilitation of prisoners under supervised freedom from actual restraint, and the granting, conditions, or revocation of parole rest in the discretion of the Board of Parole. No prisoner or parolee shall have a right of appeal from a decision of the board regarding release or deferment of release on parole, the imposition or modification of authorized conditions of parole, the termination or restoration of parole supervision or discharge from parole before the end of the parole period, or the revocation or reconsideration of revocation of parole, except for the denial of a revocation hearing under R.S. 15:574.9.
* * *
C. The district court shall have appellate jurisdiction over pleadings alleging a violation of R.S. 15:574.9. The review shall be conducted by the court without a jury and shall be confined to the revocation record. Within thirty days after service of the petition, or within further time allowed by the court, the Board of Parole shall transmit to the reviewing court the original or a certified copy of the entire revocation record of the proceeding under review. The review shall be limited to the issues presented in the petition for review. The discovery provisions under the Code of Civil Procedure applicable to ordinary suits shall not apply in a suit for judicial review under this Subsection. The court may affirm the revocation decision of the Board of Parole or reverse and remand the case for further revocation proceedings. An aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal.
D. Petitions for review that allege a denial of a revocation hearing under the provisions of R.S. 15:574.9 shall be subject to a peremptive period of ninety days after the date of revocation by the Board of Parole. . . . Petitions for review filed after this preemptive period shall be dismissed with prejudice . . . . .
(Emphasis added).
Louisiana Revised Statute 15:574.11 is a statutory grant of appellate jurisdiction to the Nineteenth Judicial District Court to review decisions of the Parole Board where a denial of a revocation hearing under LSA-R.S. 15:574.9 is alleged or the procedural due process protections specifically afforded for such a hearing were violated. Thus, an appeal is allowed only where the parolee has alleged in his petition for judicial review that his right to a revocation hearing has been denied or that the procedural due process protections specifically afforded by LSA-R.S. 15:574.9 in connection with such a hearing were violated. Leach v. Louisiana Parole Board, 2007-0848 (La. App. 1st Cir. 6/6/08), 991 So. 2d 1120, 1124, writs denied, 2008-2385 (La. 8/12/09), 17 So. 3d 378, and 2008-2001 (La. 12/18/09), 23 So. 3d 947; see also Brown v. LeBlanc, 2010-0491 (La. App. 1st Cir. 10/29/10), 48 So. 3d 419, 421. There is no other basis for an appeal. LSA-R.S. 15:574.11(A).
Moreover, in these limited, specified circumstances where an appeal is allowed, it must be taken within ninety days. LSA-R.S. 15:574.11(D); Collins v. La. Board of Parole, 2009-1800, p. 4 (La. App. 1st Cir. 3/26/10)(unpublished); see also Penson v. Henderson, 2009-2276, pp. 2-3 (La. App. 1st Cir. 6/11/10)(unpublished). The plain language of LSA-R.S. 15:574.11(D) provides that the time period provided therein is peremptive. Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. LSA-C.C. art. 3458. Additionally, peremption may not be renounced, interrupted, or suspended. LSA-C.C. art. 3461; Brown, 48 So. 3d at 421.
In the instant case, Sams did not file his petition for judicial review until approximately seven months after the Parole Board rendered its decision to revoke his parole, well after the ninety days within which he was allowed by law to seek judicial review. Thus, regardless of whether Sams had a right to appeal under LSA-R.S. 15:574.11(C), Sams's rights to seek review, if any, were extinguished by his failure to file a petition within the ninety days allotted in LSA-R.S. 15:574.11(D). See Penson, 2009-2276 at p. 3 (unpublished).
Moreover, we find no merit to Sams's contention on appeal that this court's opinion in Bertrand v. Louisiana Parole Board, 2006-0871 (La. App. 1st Cir. 3/28/07), 960 So. 2d 979, supports his argument that the peremptive period set forth in LSA-R.S. 15:574.11(D) does not apply to his claim. The Bertrand case did not involve an issue of timeliness or peremption and, thus, is inapposite to the issues presented herein.
CONCLUSION
For the above and foregoing reasons, the May 10, 2010 judgment of the district court, dismissing Sams's petition for judicial review with prejudice as untimely, is affirmed. Costs of this appeal are assessed against Stephen Sams.