CRUZ v. BOARD OF PAROLE, 53 Or. App. 263 (1981)

631 P.2d 829

CA 18492Oregon Court of Appeals.Argued and submitted May 13, 1981
Appeal dismissed July 27, 1981 Reconsideration denied September 17, 1981 Petition for review denied October 27, 1981 (291 Or. 893)

Page 264

Judicial Review from Board of Parole.

Marilyn C. McManus, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Elise C. Brown, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, John R. McCulloch, Jr., Solicitor General, and William F. Gary, Deputy Solicitor General, Salem.

Before Gillette, Presiding Judge, and Roberts and Young, Judges.

ROBERTS, J.

Appeal dismissed.

Page 265

ROBERTS, J.

Petitioner was convicted of the crime of murder and was confined at Oregon State Penitentiary in March, 1977. On July 13, 1977, the Board of Parole (Board) met to establish petitioner’s initial release date.[1] The Board set petitioner’s release date as July, 1997. Petitioner apparently did not request administrative review of this order until nearly three years later. On May 14 and June 9, 1980, his requests for review were denied.

The nature of the order appealed from is “the final order of the Board made on June 9, 1980.” Petitioner assigns as error the Board’s failure to retain the record of petitioner’s initial release date hearing.[2] Petitioner claims that the failure of the Board to provide him with a record of the 1977 proceedings results in a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Art I, § 20 of the Oregon Constitution. We do not reach the question of whether the rule requiring the Board to retain prison hearing records for a minimum of two years results in a deprivation of petitioner’s constitutionally protected rights, because we find petitioner’s appeal is not properly before us.

ORS 144.335 provides for judicial review of final orders by the Board relating to the granting of parole. Harris v. Board of Parole, 288 Or. 495, 503, 605 P.2d 1181 (1980). This court has held that that decision of the Board setting a release date is a final order within the meaning of ORS 144.335(1). Folk v. Board of Parole, 53 Or. App. 142, 631 P.2d 353 (1981); Harris v. Board of Parole, 47 Or. App. 289, 297, 614 P.2d 602 (1980). ORS 144.335 provides, in pertinent part:

“(1) When a person over whom the board exercises its jurisdiction is adversely affected or aggrieved by a final order of the board related to the granting, revoking or

Page 266

discharging of parole, such person is entitled to judicial review of the final order.
“(2) The order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the order for which review is sought. The board shall submit to the court the record of the proceeding, or, if the inmate agrees, a shortened record. A copy of the record transmitted shall be delivered to the inmate by the board.

“* * * * *.”

Petitioner had 60 days from the initial parole release date order to appeal that order to this court. The fact that the rule governing “administrative appeals” contains no restrictions on the time frame for requesting administrative
review does not extend the time limit for judicial review.[3]
Denial by the Board of an administrative appeal is not a final order within the meaning of ORS 144.335(1).

Both Harris decisions, on Supreme Court review and on remand, recognized that not all “orders” by the Board of Parole relating to the granting of parole are final orders. 288 Or at 504; 47 Or App at 292. ORS 183.310(4)(b), the section of the Oregon Administrative Procedures Act which defines “final order” as it applies to state agencies, and which applies to the Board of Parole, Harris v. Board of Parole, supra, 47 Or App at 303, defines final order as “final agency action expressed in writing.” In the case of release date hearings, the final order is the decision of the

Page 267

Board setting a release date.[4] The request for administrative appeal is in the nature of a motion to vacate or to set aside the judgment. An order by a court denying such a motion is not an appealable order. Unemployment Comp. Com. v. Bates, 227 Or. 357, 362 P.2d 321 (1961); Credit Bureau Inc. of Georgia v. Marshall, 53 Or. App. 46, 630 P.2d 910 (1981). The order denying petitioner’s request here is likewise not appealable. Petitioner’s appeal from the final order of July 13, 1977, was not timely filed and he may not appeal from the June, 1980, decision to deny administrative review.

Appeal dismissed.

Page 268