### IN THE SUPREME COURT OF TENNESS EE AT JACKSON Novem ber 14, 200 2 Session

STATE OF TENN ESSEE v. ALAN L . ADLER Appeal by pe rmissio n from the Court of Cr

iminal App eals Circuit Court for Fayette County No. 4945 Jon Kerry Blackwood, Judge

No. W2001-00178-SC-R11-CD - Filed Dece mber 30, 2002

The appellant, Alan L. Adler, wa s indicted for aggravate d child neglect of a child under six years of age, a Class A fe

lony . Followi ng tria

l, a Fay ette Count

y jury convicted him of the lesser-included offense of reckless endang erment, a Class A misdemeanor. Subsequently , the appellant, pursuant
to Tennessee Code Annotated section 40

- 32-101 (s ection 40 -32-101) , petitioned the tria l court to expu nge all public records pertaining to his indictment, prosecution
, and trial for the agg ravate d child neglect charge. After t he app ellan t'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 entitle d to expung ement und er sect ion 40-32- 101 beca

useh e was convicted of a lesserincluded offense. We granted this appeal to deter mine if the State is authorized under Rul e 3(c) to appeal a trial court's expungement order. Af ter examining the facts and the law per tinent to this issue, we hold th at the Sta te is not p ermit ted to appeal a tria l cour t's expungement order as of right pursuant to Rule 3(c ). Neve

rtheless , treatin g the Sta

te's ap peal as a writ of cert iorari, we also h old th at the appe llant was entitled i n this cas e to expung ement of all public

record s pertain

ing to th e felony cha

rge of which he was acquitted.

Tenn. R. App.P. 11; J

udgment of the Cour

t of Crim inal Appeals

Revers ed and Case Remanded to the Circuit Court for Fayet te County

W IL LI AM M. B ARKER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.

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

Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moo re, Soli citor Ge neral; K im R. Helper, Assistant Attorney Gene ral; Elizabeth T. Rice, District Attorney Gene ral; and Ryan D. Brown, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION-2- STATEMENT OF

THE CASE

The defendant-appel lant, Alan L. Adler, wa s indicted in Faye tte County for the offe

nse of aggravated child neglect of a child under six years of age. At trial, the jury was instructed o n aggravated

ch il d n eg le ct of

a c hi ld un de r s ix yea rs of ag e ( a C la ss A f

el on y) and the lesser-included offenses of child neglect (a Class D f elony) and

reckless endangerment (a Class A misdemeanor). Following deliberation, the jury f ound the defendant not guilty of either felony , but guilty of misdemeanor

reckless endangerment. The tr ial court suspended all but two days of the ap pella nt's nine month sent

ence, a nd he wasreleas ed afte

r servin g forty

-eight (48) hour s in jail. Su bs eq ue nt ly, the appellant successfully petitioned the Circuit Courtfor Fay ette County, pursuant to section 40-32- 101, "to order all public reco rds pertaining to the arrest indictment, prosecution and trial . . . for aggravated

child neglect, and simple child neglect be e xpunged." 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 , 8 15 S.W .2d 220 (T enn. Crim. App. 1991 ), the Sta te could a

ppeal an unfavor able expungement

order as of right under Rule 3(c); a nd 2) that the appellant

was not entitled to have the records of the greater

charges expunged beca

use he was convicted of a lesser-included of fense.

ANALYSIS

I. THE STATE 'S APPEAL AS OF RIGHT

UNDER TENNE

SSEE RULE

OF APPELLA TE PROCEDUR

E 3(C)

The appellant argues that the Court of Criminal Appeals err ed in reviewing the

State's appeal of the t rial cou

rt's e xpungement order under Rule 3(c). Specifically , the appellant claims that the Stat e's ability

to appea l as of rig ht is stric tly l

imited to the insta

nc es set forth in Rule 3(c), which provides : Availability of Appeal as of Right by the State in Criminal

Actions

. -- In criminal actions an a ppeal as of right by

the state lies only from an order or judgment entere d by a trial cour t from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) the substantiv e effe ct of whic h results in dismissing

an indict ment, information, or complaint; (2) setting aside a verdic t of guilty and entering a judgment

of acquittal; (3) arresting judgment; (4) granting

or refusing to revoke probation; or (5) re manding a child to the juvenile cou rt. The state may a

lso appeal as of right from a final judgment in a habeas corpu s, ext radition, or post-conviction procee ding. (Emphasi s added). The appellant asserts that beca use Rule 3(c) does not include an order of expungement

among those insta

nces whe rein an appeal as of righ

t by the State is permitted, the Stat

e had no au thority to appea l the expung ement or

der as of right. Co nv er se ly, while conceding that t he expres s langua

ge of Rule 3(c) does not sp ecifica lly auth orize the State to appea l an expung ement or

der as of right, the State cites to the Court of Cri minal Appeals decision of State v. McCary for support for its position. McCary addre sse d-3-

whether a criminal defendant could appeal as of rig ht a trial court's denialof 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 ve

ry clearly enumera tes the sp ecific

circu mstance s in which a defenda nt is authorized to appeal as of right in a criminal action. None of the se enumerated instance s in Rule 3(b) would allow a defendant to appeal as of right a trial cou rt's de nial of a n order o f expung ement. Neverth eless, in McCary , the Cour t of Crimina

l Appealsheld

that the failure of

Rule 3(b) to provide for an appeal from the denial of an expungement or der was "apparently

an oversight in the drafting of the rule s since the statute

establish ing juri sdiction in

this Court apparently a

nticipates that all final judgments arising ou t of crimi nal case s are ap pealabl e." 815 S.W.2d at 22 1. Beca use of thi s 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).

Becau se McCary

granted criminal defendants an a ppeal as of

right under Rule 3(b), the Court of Criminal Appeals in the instant case held that in fai rness the State should have a similar right under Rule 3(c) because

"what isgood fo

r the go ose is good for

the gander." Since no application for permission to appeal was filed in McCary , this Court has not pr

eviously had the oc casion 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 inter preting statutes, this Court has routinely f ollowed t h e 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.2d 513, 519 (Tenn. 2001). This Court has also determined that such rules of statutory construction are "applicable in construing rules governing the

practice and pr ocedure of the co urt." State v. Peele , 58 S.W.3d 701, 704 (Tenn. 2001) (citi ng State v. Brewer , 989 S.W.2d 349, 355 n.4 (Tenn. Crim. App. 1997)).

Applying these rules to the instant ca se, it is clear that Rule 3 (c) gr

ants the St

ate the a uthority
to appeal a s of right only in a limited

number of

circumst ances. T he plain l angua

ge of th e rule
enumerates the six instances in which the State may appe al as of right and states that they a

re the "o nl y" instances that give the State such a right. Tenn. R. App. P. 3 (c). Moreo ver, by listing the specific circumstances that give the State the rig ht of appeal under Rule 3(c), the rule " excludes other [circumst ances] that are not

mentioned ." Peele , 58 S.W.3d at 704. Additionally, noting that in the past this Court h as examine d Advisor y Co mmittee Com

ments to ai d in its interpretation of court rules, see Gann v. B urtin , 511 S.W.2d 244, 246 (Tenn. 1974), we find it revealing that the Advisory Commission Comment to Rule 3(c) states tha t "the ru le 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 oversig ht

on the part of the drafters of Rule 3 in failing to provide f or the appeal of an unfav orable ruling

conc erning an expungement order. The statute allowing for the expungement of public re cords
, curren tly section 40-32-101, became effective on July 1, 1973. By

contrast, Rule 3 of the Tennessee-4-

Rules of Appellate Procedure became e ffective July 1, 1979, pursuant to Tennessee CodeAnnotated sections 16-112 to 16-118 (1977). When interpreting statutes, this Court notes that "the Legislature is presume d to have k

nowledg e of its pr

ior enactments and

to know the state of the law at the time it passes legisl ation." Wilson v. Johns on County , 879 S.W.2d 8 07, 810 (T enn. 1994 ); Neff v. Cherokee Ins. Co. , 704 S.W.2d 1, 4 (T e nn. 1986) . We agr ee with th

e appell ant that th

e same presumption should app ly to this Court w

hen it dra fts procedural rules which are approved by the General Assembly. Bec ause the e xp ungeme

nt statute was in ef

fect at t he time Rul e 3 beca

me effec tiv e, we m ust conclude that this Court and the General Assembly specifically c

hose to allow neither the State

nor a cr iminal def

endant a n appea l as of rig ht under R

ule 3 fro m an unfa

vorable ruling concerning an expunge ment order.

Becau se of the plain and unambiguous languag e of Rules 3(b) and 3(c), we conclude tha t neither the State nor a criminal defendant has the authority to appea l as of right an unfavorable ruling concerning an ex pu ng em en t o rd er un de r R ul e 3 . A cc or di ng ly, the judgment of the Court of Criminal Appeals is rever sed. To the extent tha t McCary is inconsistent with this opinion, it is overruled.

Neverth eless, despite th

e fact th at Rule 3( c) failsto author ize the Stat

e to appeal as of right the granting of

an expungement order, the State urges this Court to permit the appea l to proceed as

a petition for a writ of certiorari. The common law wr it of certiorari has been codified in Tennessee Code Anno tated se ction 27- 8-101 (20 00) (section 27-8- 101). Sec tion 27-8- 101 provid es: The writ of certiorari may be granted whenever a

uthorized by law, and also in all

c ases w here an inferior tribunal, board, or offic er exercising judicial functions has exceeded the jurisdiction conferred,

or is acting illegally , when, in the judgment of the court, ther e is no other pl ai n, sp ee dy, or ad eq ua te re me dy. This section does not ap ply
to actions governed by

the Tennessee Rules of Appellate Procedure. Ge ne ra ll y, the writ of certiorari is limited in application and does not normally lie to inquire into the

correctness of a judgment issued by a court with jurisdiction. State v. Johnson , 569 S.W.2d 808, 815 (Tenn. 1978). However, we have previously noted that

an appellate cou

rt is within

its provinc e to grant a writ of certiorari "[w]here th e action of th e trial court is withou t legal author ity." Id. (citing Statev. Gant , 537 S.W.2d 711 (Tenn. Crim. App. 1975)). The State maintains that the tr ial co urt's granting of the appellant's motion for an order of expunge ment was erroneous because the appe llant

was convicted of

a lesser-included offense, rende ring the expungement statute inapplicable. If the State' s p osition is correct, then the trial court was acting contra ry to the law in g

ranting the appel lant's petition for

expunge ment. Because this appeal involves an alleg ation that the trial court acted without le ga l a ut ho ri ty a nd be ca us e " th er e i s n o o th er pl ai n, sp ee dy, or adequate remedy ," we will treat the State's appeal as that of a writ of c ertiora

ri. Acco rdingly , we will a

ddress whether i n gran ting the appellant's petition to expunge public records, the trial cour t acted without leg a l authority in contrave

ntion of the expungement statute. II. THE EFFECT OF LESSER-INCLUDED OFFENSE CONVICTIONS ON THE EXPUNGEM

ENT STATUTE-5-

The authority of Tenne ssee trial judges to grant orders of expungement derives from section 40-32-10 1 which pr

ovides: Destruction or release o f record s . -- (a)(1) All public records of a person who has been charged with a misdemea nor or a felony , and which charge has been dismissed, or a no true bill returned by a grand ju ry , or a ver

dict of no t guilty

returne d by

the jury , and all public records of a person w ho wa s arrested and released without being charged, shall , u po n p et it io n b y t ha t person to the court having jurisdiction in such previous action, be removed a nd des troyed without cost to such person . . . . (Emphasi s added). Given that he was acquitted of the more se rious charges (agg

ravat ed ch ild neglect and child neglect), the a

ppellant asserts t hat he sho uldbe entitled t

o have the record s of those charges expunge d becau se the jur y f ound him not

guil ty o f thosecharg es. Conve rsely , the State claims that the word "charge" in section 40-32-101(a)(1) embrac es all lesser-included offenses. The Stateasserts that because Adler was convicted of a lesser-included

offense, the original charg e has
notbeen dismissed, nor has a not guilty verdict been retur

ned, ren dering

the expung ement sta

tute inapplicable to the appellant.

We begin b y no ti ng that al though this is an issue of first impression before this Court, the Courtof Criminal Appeals has dealt with similar issues involving the expungement statute. I n State

v. Liddl e , 929 S.W.2d 415, 41 5 (Tenn. Cr im. App. 19 96), a de

fendant , who was charg ed with six separa te counts of

aggr avated s exual batte

ry within a si ngle ind

ictment, agreed to plead guilty to one count in exchange for the prosecutor enter ing a nolle prosequi on the remaining five counts. After the trial court denied the defendant's petition to have the r ecord for thefive di smissed co unts expunged, the Court of

Criminal Appeals reversed the trial court and order ed that the five dismissed
counts be expunged pursuant to section 40-32-101. Id. Additionally, in Eslick v. State , 942 S.W.2d 559 (Tenn. Crim. App. 1996), the defendant was charg ed in a four-count indictment with offenses including felony murder , aggravated ra pe, and aggravated kidna

ping. The jury

ultimately found the defendant not guilty of the more

serious felony murde

r and aggrava

ted rape charges. Howe

ver, the trial court refused to grant the defe ndant's motion to expunge the record of those c

harge s. Noting the mandatory natur

e of the expungement statute, the Court of Criminal Appeals reversed, holding that "the tri al court

has no disc

retion re lative to e xpunging public records for charge s resulting in a dismiss al or an acquit tal." Eslick , 942 S.W.2d at 560.

This Court has previously stated " that our primary g oal in interpreting statutes is 'to as certain and give effect to the

intention and purpose of

the legislat ure.'" Stewart v . State , 33 S.W.2d 785, 791 (Tenn. 2000) (quot ing Gleaves v. Checker Cab Transit Corp. , 15 S.W.3d 799, 802 (Tenn. 2000)). We have also noted that the best expression of legislative intent is the natural and ordinary meaning of the la nguage used by the Gene ral Assembly in the

statute. See Lipscomb v. Doe , 32 S.W.3d 840, 845 (Tenn. 2 000); Mooney v. Sneed , 30 S.W.3d 304, 306 (Tenn. 2000). This Court has previous ly described the purpose of the expungement statute as being " to pr event a ci tizen from bearing the stigma of having been ch arged with a cr iminal off

ense, wh ere he w as acquitted

of the charge or prosecution of the cha

rge w as abandoned. " State v. Doe , 588 S.W.2d 549, 552 (Tenn. 1979)-6-

(overruled, in part, by s tatute) ( emphasis added). We note tha t the word "char ge" in this conte

xt is
notdefined in the statute, nor any where else in the Tennessee Code. How ever, Black's L aw Dictionary

(6th ed. 1990) defines "charg e" in the criminal setting as "the specific crime the defendant is accused of committing."

In the instant case, the jury found the appellant not

guilty on the

charg e of ag grava

ted child neglect, which was the speci fic crime h e was ac cused of committing . The jury

also dec lined to

conv ict the app ellant of

child neglect. The

offense for which Adler w as convicted, rec kless endang erment, though a lesser-included offense of aggravated

child neglect, see State v. Honey cutt , 54 S.W.3d 762 (Tenn. 2001), is clearly not the sa me "cha rge " as aggra

vated child neglect for purposes of

the expung ement sta

tute. Acc ordingl

y, w e hold tha

t a defendant who is convicted of a lesser-included

offense of the offense sought in the indictment or pr esentment is entitled to have the record expunged of any

greater charg e(s) for

which the jury

finds the defendant not guilty . Under section 40-32-101, we are pe rsuad ed that the appell ant is enti tled to ha ve all pub lic reco

rds of his aggravated

child neglect

and child neglect charg es expung ed. We ar e mindful t

hat if this Court were
to hold otherwise, it would be possible for a prosecutor to p ermane ntl y harm a de fendant by signific antly overch arging h im or her, a valid concern given the pur suit of leverage in the plea bargaining process. We think that it would run cou

nter to the legislature's intent if the expungement statute, designed to prevent citizens f rom being

unfairly stigmati zed, could

be so eas ily

trumped by an overzealous or vindictive prosecutor.

Las tl y, the State has posited that there m ay be c ases where the original charge and lesserincluded offense for which a defenda nt is convicted are too intertwined to make expungement of the record practical or even possible. While there may be a case in thefuture where e xpungeme

nt would not be appropriate, this is not such a case.

CONCLUSION

We concl ude that Ru le 3 of the Tenness ee Rules o f Appella te Proce dure doe s not perm it either the State or a cri minal def

endant to appeal as of right an unfavora ble ruling regarding

an order of expungement. Furthermore, we conclude that a criminal defendant who is convicted ofa lesserincluded offense than that sought in the indic tment or pr

esentme nt is entitled, under Tennessee Code Annotated section 4 0-32-101 , to have t he reco rds expung ed for every

offense in which the jury found the defendant not guilty

. This case is remanded to the Circuit Court for Fay ette County so that the original order granting

the appellant's petition for expungement may be reentered.

Costs of this appeal are taxed to the State of Tennessee.

_____________________________ WIL LI AM M. BARK

ER, JUSTICE