IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned February 23, 2012
DAVIS JEREMY USELTON v. TENNESSEE DEPARTMENT OF
CORRECTION, ET AL.
Appeal from the Chancery Court for Wayne County
No. 2011-CV-4981 Robert L. Holloway, Jr., Judge
No. M2012-00113-COA-R3-CV - Filed February 23, 2012
This is an appeal from a final judgment dismissing an inmate’s petition for common law writ
of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk
within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
F RANK G. C LEMENT, J R., J., A NDY D. B ENNETT, J., and R ICHARD H. D INKINS, J., joined.
Davis Jeremy Uselton, Clifton, Tennessee, Pro Se.
J. Lee Pope, Office of Attorney General & Reporter, for the appellee, Tennessee Department
of Correction.
James I. Pentecost, Jackson, Tennessee, for the appellee, Corrections Corporation of
America.
MEMORANDUM OPINION 1
1
Tenn. Ct. App. R. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
On August 2, 2011, Davis J. Uselton, an inmate in the custody of the Department of
Correction, filed a Petition for Common Law Writ of Certiorari in the Chancery Court for
Wayne County, challenging a prison disciplinary decision. On October 31, 2011, the trial
court entered an order dismissing the petition. Mr. Uselton filed a notice of appeal with the
trial court clerk on December 29, 2011.
Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with and received by the
trial court clerk within thirty (30) days after entry of the order appealed. Mr. Uselton did not
file his notice of appeal until fifty-nine (59) days after entry of the final judgment. Because
Mr. Uselton is an inmate in a correctional facility, his notice of appeal would be considered
timely if it was delivered to the appropriate individual at the correctional facility within the
thirty (30) day period. Tenn. R. App. P. 4 and 20(g). However, the certificate of service
states on its face that the notice was not delivered to the mailroom personnel until December
29, 2011, well beyond the thirty-day time period. Indeed Mr. Uselton himself recognized
his notice of appeal was untimely in that he filed a Motion for Delayed Notice of Appeal
pursuant to Tenn. R. App. P. 4 in the trial court.
While the trial court has not yet ruled on the Motion for Delayed Notice of Appeal,
Tenn. R. App. P. 4 contemplates waiver of the thirty-day time limit for filing a notice of
appeal only in criminal cases. In civil cases, the thirty-day time limit is mandatory and
jurisdictional. Albert v. Frye, 145 S.W.3d 526, 528 (Tenn.2004); Binkley v. Medling, 117
S.W.3d 252, 255 (Tenn. 2003). This court can neither waive nor extend the time period.
Tenn. R. App. P. 2 and 21(b); Flautt & Mann v. Council of City of Memphis, 285 S.W.3d
856, 869 (Tenn. Ct. App. 2008); Jefferson v. Pneumo Serv. Corp. 699 S.W.2d 181, 184
(Tenn. Ct. App. 1985). The failure to file a timely notice of appeal with the trial court clerk
deprives this court of jurisdiction to hear the matter. Flautt & Mann v. Council of City of
Memphis, 285 S.W.3d at 869.
The appeal is hereby dismissed for failure to file a timely notice of appeal. The costs
are taxed to Davis J. Uselton for which execution, if necessary, may issue.
PER CURIAM
-2-
Davis Jeremy Uselton v. Tennessee Department of Correction
Combined Opinion