IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 4, 2011

STATE OF TENNESSEE v. CEDRIC LAMAR MOSES

Direct Appeal from the Circuit Court for Dyer County

No. C06-223 R. Lee Moore, Judge

No. W2011-01448-CCA-R3-CD - Filed December 28, 2011

On appeal, the appellant challenges the trial court’s order denying his motion to

reinstate probation. Upon review, we conclude that the appellant does not have a Rule 3,

Tennessee Rules of Appellate Procedure, appeal as of right from the order. Therefore, the

appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal is Dismissed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ALAN E. GLENN, JJ., joined.

Noel H. Riley, II, Dyersburg, Tennessee, for appellant, Cedric Lamar Moses.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; and C. Phillip Bivens, District Attorney General, for the appellee, State of

Tennessee.

OPINION

I. Factual Background

On September 19, 2006, the appellant pled guilty to possession of .5 grams or more

of cocaine with the intent to sell or deliver. The trial court imposed an eight-year sentence,

six months of which was to be served in jail with the remainder to be served on probation.

Thereafter, on May 15, 2009, a jury convicted the appellant of two counts of facilitation of

first degree murder and one count of especially aggravated robbery. See State v. Aubrey

Tremaine Eisom & Cedric Moses, No. W2009-02098-CCA-R3-CD, 2010 WL 4540069, at

*1 (Tenn. Crim. App. at Jackson, Nov. 15, 2009), perm. to appeal denied, (Tenn. Mar. 9,
2011). On July 23, 2009, the trial court revoked the appellant’s probation because of the new

convictions and ordered the appellant to serve the balance of his sentence in confinement.

Thereafter, this court reversed the appellant’s convictions for facilitation of first degree

murder and especially aggravated robbery after concluding that there was insufficient

corroboration of an accomplice’s testimony. Id.

On January 13, 2011, the appellant, acting pro se, filed a “Motion to Reinstate

Probation,” arguing that the trial court should reinstate his probation because this court had

reversed the convictions that led to the probation revocation. On April 19, 2011, the trial

court held a hearing on the motion. After the hearing, the court found by a preponderance

of evidence that the appellant was involved in the crimes and thus the probation revocation

was justified.

II. Analysis

The appellant argues that the trial court erred by denying his motion to reinstate his

probation because the convictions underlying the probation revocation were reversed on

appeal. He further argues that the trial court abused its discretion by ruling that the evidence

supported the finding that a probation violation had occurred. The State contends that the

trial court’s order denying the motion is not an action from which an appeal lies under

Tennessee Rule of Appellate Procedure 3(b). We agree with the State.

Tennessee Rule of Appellate Procedure 3(b) limits a criminal defendant’s appeal as

of right to

any judgment of conviction entered by a trial court from which

an appeal lies to the Supreme Court or Court of Criminal

Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty

or nolo contendere, if the defendant entered into a plea

agreement but explicitly reserved the right to appeal a certified

question of law dispositive of the case pursuant to and in

compliance with the requirements of Rule 37(b)(2)(i) or (iv) of

the Tennessee Rules of Criminal Procedure, or if the defendant

seeks review of the sentence and there was no plea agreement

concerning the sentence, or if the issues presented for review

were not waived as a matter of law by the plea of guilty or nolo

contendere and if such issues are apparent from the record of the

proceedings already had. The defendant may also appeal as of

right from an order denying or revoking probation, and from a

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final judgment in a criminal contempt, habeas corpus,

extradition, or post-conviction proceeding.

Our case law has firmly established that “[u]nlike civil litigants, who have an appeal

as of right from any final judgment, parties in criminal cases do not always have an appeal

as of right under the Rules of Appellate procedure.” State v. Lane, 254 S.W.3d 349, 352

(Tenn. 2008). Our supreme court has stated that, based upon “the Latin maxim of expressio

unius est exclusio alterius, meaning ‘the expression of one thing implies the exclusion of all

things not mentioned,’” a party in a criminal case may not appeal from an action not

specifically included in Rule 3. State v. Adler, 92 S.W.3d 397, 400 (Tenn. 2002) (quoting

Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 84 (Tenn. 2001)). This court has

reiterated this principle, explaining that “[i]f an order is not specifically listed in Rule 3(b)

as one of the types of orders or judgments from which an appeal as of right exists, then there

is no appeal as of right from that order.” State v. Jay Bean, No. M2009-02059-CCA-R3-CD,

2011 WL 917038, at *2 (Tenn. Crim. App. at Nashville, Mar. 16, 2011). Rule 3 does not

specifically provide for an appeal as of right from a “Motion to Reinstate Probation.”

Therefore, we conclude that the appellant’s appeal should be dismissed. See Jonathon C.

Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877, at *1 (Tenn. Crim. App.

at Nashville, Aug. 18, 2010), perm. to appeal denied, (Tenn. 2010).

III. Conclusion

In sum, we conclude that the appeal should be dismissed.

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NORMA MCGEE OGLE, JUDGE

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