Dennis W. Holmes VS Department of Public Safety and Corrections

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA T COUR OF APPEAL FIRST CIKCU T 2012 CA 1473 DENNIS W HOLMES VERSUS LOUISIANA DEPAItT M OF PUBLIC SAFETY AND CORRECTIONS NT x Judgment Rendered AR 2 8 2 13 y O J APPEALED FROM THE NINET DISTRICT COURT ENTHJUDICIAL IN AND FOR 7 PARISEI OF EAST BATON ROUGE HG EOF LOUISIANA STA1 T DOCK NUMBER G06 l48 HE T1N10THY I HONORnBLE E KELLF JUDGE Y x S P Davis Sr Attorneys fox Plaintiff Appellant Kharmen Davis Dennis W Holmes t Shrevepot Louisiana Attoiney for Defendant Appellee 3tate of Louisiana Department of Bridges Rouge ouisiana FIatrietta J Baton Public Safety andCorrections Office of State Police BEFORE KUHN PETTIGItEW AND McDONALD JJ RL c v iJ n C McDonald J Appeliant Dennis 4V I olmes appeals the dis by the dish court of issal his claim for rcvicw of ati Administrative Law Judge decision For the following reasons wc affiri Holmes was convicted of the crime of sex penetration of a minor in New al Mexicc in October I 988 He was sentenced to a term of eighteen years followed by a year lwo parole term offendet however whEn New Mexico law requires registration of sexual iolmes as E w reieased from prison he moved to Louisiana without registering Louisiana law has specific statutes regarding the registration of sexual offcnders includi out offeriders who relocate to Loaisiana La R g of state S 540 15 et seq he 7 natters are handled by the Louisiana Bureau of Criminal dentification and nformation 1hrough the State Sex Offender and Child Predator Registiy La R 15 It is mdisputed that on April 26 2010 and March S 542 5 1 1C 20l l 1 was serri notice oF the requiremerit that he register as a sexual olmes offender under Louisiana taw he I notice fut explained the classification system as applied to Iolmcs and advised tl he was determined to be a tier III sex at offender 1 registratioi piroccss reqlaired him to renew his registration in person he every three monU for tl iof his life s e olme f submitted a written reyuest for an administrative hearing of his n assificatic c On August 10 20l l a hearing on Holmes tier classification was held and a and Order va issued and served on Holmes counsel of Decision d recoa on Scpteiuber 12 201 l The ndmiriistrative Law Judge ALJ found that es Iohr was convicted by a jury of Yhe felony ci of Criminal Sexual Penetration of a Minor Holmes admitted that l digitally penetrated the ninor vagina but e s Heaiings are heard iit accordance with the Louisiana 1ldministrative Procedurc Act La R S 950 49 et scq deuied d use oC rn The niinor e ce szs the clas of his live girl fi The hter in AI reviewed the ini on the Ne Mexico case and determined the iatio n u iparable cou Louisiana taw to bc Sexual Battery of a Persoil Under the Age of Thirtee La S IZ S 541 S 2 1 43 14 Pw to La R 15 La R 2 C 3 14 is an aggravated ol cnsc t On Oclobe I 1 2l I 1 Hohnes Yiled afor AppeaP with the Division Petition of Administeative Law vOAL The petilion was h as a request for eated ing at reh as the DOAL no juiisdiction to grant or deny an appeal An order has g denyit the rehearii request as witunely was mailed to Holmes counsel of g d reco on Octobcr I 9 20l 1 Also on October 19 2071 Ltoln iiled a request for judicial review in the ee Nineteenth Judicial District in res to the petition for judicial review the onse Deparhnent of Yublic Safety and Corrections filed an exception raising the objection ol i cai ot action t hearing on the perempCory exception was held o se he on npril 2 201 with the court rendering judgmenl sustaining the peremptory exception based on peremption ment Juci was signed April 11 2012 A ient subseq judgment was signecl by the disYrict court on October 11 2012 in order for the district court to gcant the pereinplory exception using the required decretal tge langu to dismiss Holnies claim Hot appeals that judgment which is the lles Subject of the appeal before thi5 court Persons adversely affected by decisions in an adjudicatory proeeeding have the right to judicial rcvie See La R 49 At the time of Holmes S 964 1 A classification as a tier III sex oi the procedurc foe filing a judicial review of fendea an adniinistrative decision set forth in I R 49 provided as follows a S 964 B Proceedings for revieu may be iustituted by flling a petition in the district court of the parish in which tlie agency is located vithin thirty quisiana L R S 49 ires re for rchcaring to be fiicd within ten days of the entry of Jreqt uests 95 the lccision days aCter mailing of notic the fina decision by the abency or if a eof rehearing is rithin tl days afler the decision tllereon quested irty Copies of the peNtiori sliali be served upon the agency and all parties of cecord As noted Ipetitio was filed in disti7ct court on October 19 2011 oltnes l more than thirty days a3 tt decisioi hc sought to appeal DPSC relying on the ter c Suprcnie Court decisioii in Nc glai icr 2527 i Bre 2008 p 6 6 17 La 26 09 So3d 919 923 argued that a period is cremptive wt a statute creates a right of en action and stipulates the delay wilhin wllich tl right of acfioii may be executed e Once tlle delay expires the cause o aclion no longer exists Therefare DPSC s answcr to thc petition was to file an exception of no cause of action I3olmes acgued that because there is a presumption of judicial review in equiry his appeal should have been sent o the district court Ithe district owever courl noted that matters are routinely disinissed lor failing to do something within the appropriate time delayt It would be unfair to litigants who were dismissed i5e becac they were unfimeiy to tl Hohnes untimely filing with the district court ow to be acccpted because it had bccn timeLy filed with the DOAL who had no jurisdiction Co hear an appeal Tlie court upon con the pre memocanda argument of counsel iderin ti law aild cvidence ordered that the peremptory exception based on peremption be granled in favor oi DPSC and against Holmes dismissing his petition for review of ALJ decision with prsjudice s Finding no en the decision is affirmed Cosls are assessed against ap Dennis W Holmes ellant 7ED ION U PPLCI NILD R1 I AFF MO ISID 7GNT La S 964 R a9 was amended by La Acts 2012 No 2b9 eff May 25 20 2 changing the word mailin trausniittal to Along vith the appeal Nolmes Yiled a motion to supplement thc record which was referred to this panel on IJecen 14 2012 Liecause the record ali contains the exhibits l requested ibcr cady e itt his motion we deny Uic motion as moot 4

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