State v. SCDC

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR
RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Antonio Brown, Respondent,

v.

South Carolina
Department of Corrections, Appellant.

Appeal From Richland County

 Paige J. Gossett, Administrative Law
Judge

Unpublished Opinion No.  2009-UP-605

Submitted November 2, 2009 – Filed
December 22, 2009

REMANDED

Antonio Brown, pro se, for Appellant.

Robert Wesley Jacobs, of Columbia, for
Respondent.

PER CURIAM:  The South Carolina Department of
Corrections (the Department) appeals the Administrative Law Court's (ALC)
dismissal of Antonio Brown's disciplinary conviction. The Department contends
the ALC erred in dismissing the case because it complied with all ALC
procedural rules in preparing its appeal.  We remand.[1]          

The ALC dismissed the Department's case pursuant to
ALC Rule 59, holding the Department failed to comply with the rules of
procedure in its appeal.  This was error. 

ALC Rule 59 sets forth the time limits to file the
record for an appeal of a prison disciplinary conviction:

Within forty-five (45) days of the date the case is
assigned to an Administrative Law Judge (date of assignment), the agency shall
file the record with the court, including a statement of the contents of the
record, unless the time for filing the record is extended by the Administrative
Law Judge assigned to the appeal.

ALC Rule 53(A) sets forth the requirements for filing
a document:

The date of filing is the date of delivery or the date
of mailing as shown by the postmark or by the date stamp affixed by the mail
room at the appellant's correctional institution.  Any document filed with the
Court shall be accompanied by proof of service of such document on all
parties.  A document, pleading, or motion or other paper is deemed filed by the
Court by:

(1)  delivering the document to the Court; or

(2)  by depositing the document in the U.S. mail,
properly addressed to the Court, with sufficient first class postage attached. 

In the case at bar, on February 28, 2008, the ALC gave
the Department a 90-day extension to file the record on appeal with the court. 
The Department maintains it properly filed the documents on May 13, 2008, via
U.S. mail, well within the deadline for filing provided by the ALC.  In support
of its proposition, the Department submitted a letter establishing it mailed
the record on appeal to the ALC on May 13, 2008.  Because evidence in the
record suggests that the Department properly complied with the applicable time
limits, we remand the case to the ALC for an evidentiary hearing to determine
if the Department made a good faith effort to timely file the record on appeal.  See ALC Rule 62 ("Upon the motion of any party, or on its own
motion, an Administrative Law Judge may dismiss an appeal for failure to comply
with any of the rules of procedure for appeals, including the failure to comply
with any of the time limits . . . . Notwithstanding the time frames established
herein, the Administrative Law Judge has the discretion to determine that a
document is timely filed upon a finding that the party who filed the document
made a good faith effort to file the document within the applicable time
limits."). 

REMANDED.

WILLIAMS,
PIEPER, and LOCKEMY, JJ., concur. 

[1]  We decide this case without oral argument
pursuant to Rule 215, SCACR.