State v. Adler

• Decision Date: 30 December 2002
• Citation: 92 S.W.3d 397
• Parties: STATE of Tennessee v. Alan L. ADLER.
• Court: Tennessee Supreme Court

92 S.W.3d 397

STATE of Tennessee v. Alan L. ADLER.

Supreme Court of Tennessee, at Jackson.

December 30, 2002.

Robert L. Hutton, Memphis, Tennessee, for the appellant, Alan L. Adler.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Ryan D. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

OPINION

The appellant, Alan L. Adler, was indicted for aggravated child neglect of a child under six years of age, a Class A felony. Following trial, a Fayette County jury convicted him of the lesser-included offense of reckless endangerment, a Class A misdemeanor. Subsequently, the appellant, pursuant to Tennessee Code Annotated section 40-32-101 (section 40-32-101), petitioned the trial court to expunge all public records pertaining to his indictment, prosecution, and trial for the aggravated child neglect charge. After the appellant's petition was granted by the trial court, the State of Tennessee appealed pursuant to Tennessee Rule of Appellate Procedure 3(c) (Rule 3(c)) and argued that Adler was not entitled to expungement under section 40-32-101 because he was convicted of a lesser-included offense. We granted this appeal to determine if the State is authorized under Rule 3(c) to appeal a trial court's expungement order. After examining the facts and the law pertinent to this issue, we hold that the State is not permitted to appeal a trial court's expungement order as of right pursuant to Rule 3(c). Nevertheless, treating the State's appeal as a writ of certiorari, we also hold that the appellant was entitled in this case to expungement of all public records pertaining to the felony charge of which he was acquitted.

STATEMENT OF THE CASE

The defendant-appellant, Alan L. Adler, was indicted in Fayette County for the offense of aggravated child neglect of a child under six years of age. At trial, the jury was instructed on aggravated child neglect of a child under six years of age (a Class A felony) and the lesser-included offenses of child neglect (a Class D felony) and reckless endangerment (a Class A misdemeanor). Following deliberation, the jury found the defendant not guilty of either felony, but guilty of misdemeanor reckless endangerment. The trial court suspended all but two days of the appellant's nine month sentence, and he was released after serving forty-eight (48) hours in jail. Subsequently, the appellant successfully petitioned the Circuit Court for Fayette County, pursuant to section 40-32-101, "to order all public records pertaining to the arrest indictment, prosecution and trial ... for aggravated child neglect, and simple child neglect be expunged." On appeal, the Court of Criminal Appeals reversed the trial court's expungement order and held: 1) that under the authority of State v. McCary, 815 S.W.2d 220 (Tenn.Crim.App.1991), the State could appeal an unfavorable expungement order as of right under Rule 3(c); and 2) that the appellant was not entitled to have the records of the greater charges expunged because he was convicted of a lesser-included offense.

ANALYSIS

I. THE STATE'S APPEAL AS OF RIGHT UNDER TENNESSEE RULE OF APPELLATE PROCEDURE 3(C)

The appellant argues that the Court of Criminal Appeals erred in reviewing the State's appeal of the trial court's expungement order under Rule 3(c). Specifically, the appellant claims that the State's ability to appeal as of right is strictly limited to the instances set forth in Rule 3(c), which provides:

Availability of Appeal as of Right by the State in Criminal Actions. — In criminal actions an appeal as of right by the state lies only from an order or judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) the substantive effect of which results in dismissing an indictment, information, or complaint; (2) setting aside a verdict of guilty and entering a judgment of acquittal; (3) arresting judgment; (4) granting or refusing to revoke probation; or (5) remanding a child to the juvenile court. The state may also appeal as of right from a final judgment in a habeas corpus, extradition, or post-conviction proceeding.

(Emphasis added). The appellant asserts that because Rule 3(c) does not include an order of expungement among those instances wherein an appeal as of right by the State is permitted, the State had no authority to appeal the expungement order as of right.

Conversely, while conceding that the express language of Rule 3(c) does not specifically authorize the State to appeal an expungement order as of right, the State cites to the Court of Criminal Appeals decision of State v. McCary for support for its position. McCary addressed whether a criminal defendant could appeal as of right a trial court's denial of an expungement order under Tennessee Rule of Appellate Procedure 3(b) (Rule 3(b)). The language of Rule 3(b) is similar to Rule 3(c) in that it very clearly enumerates the specific circumstances in which a defendant is authorized to appeal as of right in a criminal action. None of these enumerated instances in Rule 3(b) would allow a defendant to appeal as of right a trial court's denial of an order of expungement. Nevertheless, in McCary, the Court of Criminal Appeals held that the failure of Rule 3(b) to provide for an appeal from the denial of an expungement order was "apparently an oversight in the drafting of the rules since the statute establishing jurisdiction in this Court apparently anticipates that all final judgments arising out of criminal cases are appealable." 815 S.W.2d at 221. Because of this perceived oversight, the Court of Criminal Appeals held in McCary that a defendant could appeal the denial of an order of expungement under Rule 3(b).

Because McCary granted criminal defendants an appeal as of right under Rule 3(b), the Court of Criminal Appeals in the instant case held that in fairness the State should have a similar right under Rule 3(c) because "what is good for the goose is good for the gander." Since no application for permission to appeal was filed in McCary, this Court has not previously had the occasion to examine whether the State or a criminal defendant may appeal under Rule 3 an unfavorable ruling involving an expungement order. We take that opportunity at this time.

As this Court stated in Hill v. City of Germantown, 31 S.W.3d 234, 237-38 (Tenn.2000), "where a statute is without contradiction or ambiguity, there is no need to force its interpretation or construction ...." Additionally, when interpreting statutes, this Court has routinely followed the Latin maxim of expressio unius est exclusio alterius, meaning "the expression of one thing implies the exclusion of all things not mentioned." Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 84 (Tenn.2001); see also D & E Const. Co. v. Robert J. Denley Co., 38 S.W.3d 513, 519 (Tenn.2001). This Court has also determined that such rules of statutory construction are "applicable in construing rules governing the practice and procedure of the court." State v. Peele, 58 S.W.3d 701, 704 (Tenn.2001) (citing State v. Brewer, 989 S.W.2d 349, 355 n. 4 (Tenn.Crim. App.1997)).

Applying these rules to the instant case, it is clear that Rule 3(c) grants the State the authority to appeal as of right only in a limited number of circumstances. The plain language of the rule enumerates the six instances in which the State may appeal as of right and states that they are the "only" instances that give the State such a right. Tenn. R.App. P. 3(c). Moreover, by listing the specific circumstances that give the State the right of appeal under Rule 3(c), the rule "excludes other [circumstances] that are not mentioned." Peele, 58 S.W.3d at 704. Additionally, noting that in the past this Court has examined Advisory Committee Comments to aid in its interpretation of court rules, see Gann v. Burton, 511 S.W.2d 244, 246 (Tenn.1974), we find it revealing that the Advisory Commission Comment to Rule 3(c) states that "the rule provides that appeals as of right lie only in those circumstances specified in the subdivision." (Emphasis added).

Furthermore, we disagree with the language in McCary suggesting that it was an oversight on the part of the drafters of Rule 3 in failing to provide for the appeal of an unfavorable ruling concerning an expungement order. The statute allowing for the expungement of public records, currently section 40-32-101, became effective on July 1, 1973. By contrast, Rule 3 of the Tennessee Rules of Appellate Procedure became effective July 1, 1979, pursuant to Tennessee Code Annotated sections 16-112 to 16-118 (1977)% When interpreting statutes, this Court notes that "the Legislature is presumed to have knowledge of its prior enactments and to know the state of the law at the time it passes legislation." Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn.1994); Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn. 1986). We agree with the appellant that the same presumption should apply to this Court when it drafts procedural rules which are approved by the General Assembly. Because the expungement statute was in effect at the time Rule 3 became effective, we must conclude that this Court and the General Assembly specifically chose to allow neither the State nor a criminal defendant an appeal as of right under Rule 3 from an unfavorable ruling concerning an expungement order.

Because of the plain and unambiguous language of Rules 3(b) and 3(c), we conclude that neither the State nor a criminal defendant has the authority to appeal as of right an unfavorable ruling concerning an expungement order under Rule 3. Accordingly, the judgment of the Court of Criminal...