        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE                                    08/24/2017
                         AT KNOXVILLE
                                 June 27, 2017 Session

       STATE OF TENNESSEE v. WILLIAM CHRISTOPHER DAVIS

                  Appeal from the Criminal Court for Knox County
                       No. 107367 Bobby R. McGee, Judge
                     ___________________________________

                           No. E2016-02132-CCA-R3-CD
                       ___________________________________


Upon the request of the Department of Safety, the State filed a petition to declare William
Christopher Davis, the Defendant, a “habitual offender” pursuant to Motor Vehicle
Habitual Offenders Act (“the MVHO Act”). The trial court dismissed the petition after
concluding that the MVHO Act was ambiguous regarding when the State had a duty to
file a petition. On appeal, the State argues that it has an appeal as of right under
Tennessee Rule of Appellate Procedure 3(c) from the dismissal of its petition and that the
trial court erred in dismissing its petition on the grounds that the MVHO Act was
ambiguous and penal in nature. The Defendant argues that the State does not have an
appeal as of right from the dismissal of its petition and that the trial court correctly
dismissed the petition. After a thorough review of the facts of this case and applicable
case law, we conclude that the State does not have an appeal as of right from the
dismissal of a motor vehicle habitual offender petition, and thus we dismiss the State’s
appeal.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.


Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme Allen, District Attorney General; and Gregory Eshbaugh,
Assistant District Attorney General, for the appellant, State of Tennessee.

James R. Owen, Knoxville, Tennessee, for the appellee, William Christopher Davis.
                                       OPINION

                        I. Factual and Procedural Background

        On February 1, 2016, the Department of Safety requested that the District
Attorney’s Office of the Sixth Judicial District petition to have the Defendant declared a
“habitual offender” as defined in Tennessee Code Annotated section 55-10-603(2) of the
MVHO Act. On February 25, 2016, the District Attorney’s Office filed the petition
claiming that the Defendant had been convicted of DUI in Knox County on December
30, 2015, driving on a revoked license in Williamson County on October 2, 2012, and
DUI in Williamson County on February 22, 2012. The Defendant filed a motion to
dismiss the petition on September 8, 2016. The motion alleged that on February 10,
2016, after the Defendant pled guilty to the DUI charge in Knox County, he requested a
restricted license order and that the State did not object. On February 17, 2016, he
installed an interlock device in his vehicle, obtained SR22 insurance, paid a sixty-seven
dollar ($67.00) fee to the State, and was issued a restricted license. The motion alleged
that:

              When the [Defendant] pled guilty in docket [#]1136345 on
      December 30, 2015, the [S]tate had notice that the [D]efendant had the
      three triggering convictions that the [S]tate subsequently relied upon in the
      petition to declare the [D]efendant a habitual motor vehicle offender. At
      that time, the [S]tate chose not to comply with the requirements of
      Tennessee Code Annotated [section] 55-10-618 (b) and did not file or give
      the [D]efendant notice of a habitual motor vehicle offender petition. The
      [S]tate did not file the petition to declare the [Defendant] a habitual motor
      vehicle offender until February 25, 2016, two months after the date of his
      plea.

       On September 29, 2016, the trial court heard the parties’ arguments concerning the
State’s petition. The trial court admitted the Department of Safety’s Habitual Offender
MVR [motor vehicle report], which was dated February 1, 2016, into evidence. The trial
court stated the following:

      [I]t does appear that there may be an ambiguity in the law as to just what
      procedure should be followed when the Attorney General knows that the
      prosecution is bringing – at that time, is going to be the triggering
      conviction for the statute and intends to use it as the trigger and to seek
      revocations of the license. And even though it’s not technically a criminal
      matter, it still is penal in nature. And I think the Court would have to
      resolve the ambiguity in favor of the [D]efendant.

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Accordingly, the trial court dismissed the State’s petition. The State filed its notice of
appeal on October 17, 2016.

                                       II. Analysis

       The State argues that it has an appeal as of right from the dismissal of its petition
under Tennessee Rule of Appellate Procedure 3(c) because the substantive effect of the
trial court’s dismissal order “results in dismissing a complaint as set forth in Rule
3(c)(1).” The Defendant contends that the State does not have an appeal as of right under
Tennessee Rule of Appellate Procedure 3 to appeal the dismissal of its petition.

                                State’s Appeal as of Right

       Tennessee Rule of Appellate Procedure Rule 3(c) states the following:

               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, from an order or judgment entered pursuant to Rule
       36 or Rule 36.1, Tennessee Rules of Criminal Procedure, and from a final
       order on a request for expunction.

Tenn. R. App. P. 3(c). The Advisory Commission Comment for this subsection states, in
pertinent part, that:

       The only limitation placed upon the right of appeal by the state in criminal
       actions is that it may not appeal upon a judgment of acquittal. In addition,
       notions of double jeopardy place constitutional restrictions on the
       availability of appeals by the state. See[,] e.g., United States v. Martin
       Linen Supply Co., 430 U.S. 564 (1977). This subdivision specifies
       situations, within constitutional limits, in which it seems desirable to
       recognize the state’s right of appeal. In addition, the rule provides that
       appeals as of right lie only in those circumstances specified in the
       subdivision.

Tenn. R. App. P. 3(c), Advisory Comm. Cmt.
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       In its reply brief, the State points to numerous cases in which this court has
reviewed appeals by the State of dismissals of habitual motor vehicle offender (HMVO)
petitions. See State v. Gross, 673 S.W.2d 552, 553 (Tenn. Crim. App. 1984); State v.
James E. Thompson, No. 02C01-9706-CC-00213, 1998 WL 281939, at *1 (Tenn. Crim.
App. June 2, 1998); State v. Earl Stanley Williams, No. E2001-01675-CCA-R3-CD, 2002
WL 489124, at *1 (Tenn. Crim. App. Apr. 2, 2002), no perm. app. filed; State v. Daniel
Henley, No. W2001-02962-CCA-R3-CD, 2002 WL 31259483, at *1 (Tenn. Crim. App.
Aug. 27, 2002), no perm. app. filed; State v. Daniel Cleveland and Matthew Harville, No.
W2004-02892-CCA-R3-CD, 2005 WL 1707975, at *1 (Tenn. Crim. App. July 21, 2005),
no perm. app. filed. The State asserts that this court should consider its appeal based on
the precedent set by these prior cases. However, these cases do not specifically analyze
whether the State had an appeal as of right under Tennessee Rule of Appellate Procedure
3(c) from the dismissal of an HMVO petition. Thus, we note that this is an issue of first
impression for this court.

      In determining whether the State had a direct appeal as of right from an
expungement order, our supreme court stated the following:

      [I]t 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.”

State v. Adler, 92 S.W.3d 397, 400 (Tenn. 2002) (quoting State v. Peele, 58 S.W.3d 701,
704 (Tenn. 2001)) (second alteration in original), superseded on other grounds by Tenn.
Code Ann. § 40-32-101. Additionally, our supreme court noted that Tennessee Rule of
Appellate Procedure 3 became effective after the statute permitting expungement of
public records became effective and that “[w]hen interpreting statutes, [the supreme
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.’” Id. at 400-401
(quoting Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994)). The Tennessee
Supreme Court concluded that the Tennessee 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.” Id. at 401.

       Despite this court’s prior consideration of State appeals from the denial of HMVO
petitions, we conclude that the State does not have an appeal as of right under Tennessee
Rule of Appellate Procedure 3(c) to appeal the dismissal of an HMVO petition. See State
                                            -4-
v. Cody Matthew Headrick, No. E2008-02598-CCA-MR3-CD, 2009 WL 4505440, at *6-
8 (Tenn. Crim. App. Dec. 4, 2009), perm. app. denied (Tenn. May 12, 2010) (concluding
that the State did not have a Rule 3 appeal from the trial court’s order granting pretrial
diversion even though the court had previously considered such appeals). The State
argues that its appeal as of right in this case falls under Tennessee Rule of Appellate
Procedure 3(c)(1), which includes an appeal from an order or judgment entered by a trial
court “the substantive effect of which results in dismissing an indictment, information, or
complaint[.]” However, a plain language reading of subsection 3(c)(1) leads us to
conclude that an appeal from the dismissal of a HMVO petition does not fall under Rule
3(c)(1). The substantive effect of the trial court’s order dismissing the State’s petition did
not result in the dismissing of an indictment, information, or complaint. The State’s
petition would clearly not be categorized as an indictment or information. Tennessee
Rule of Criminal Procedure 3 defines an affidavit of complaint as “a statement alleging
that a person has committed an offense[]” that must “allege the essential facts
constituting the offense charged.” Tenn. R. Crim. P. 3(c). Here, the State’s petition did
not allege that the Defendant committed an offense; instead, it sought to declare the
Defendant’s status as an HMVO. An appeal from the dismissal of an HMVO petition is
not specifically enumerated in Tennessee Rule of Appellate Procedure 3(c); thus, under
Adler, 92 S.W.3d at 400, the State does not have an appeal as of right from the trial
court’s order in this case. Therefore, based on the supreme court’s precedent in Adler
and our plain language reading of Tennessee Rule of Appellate Procedure 3(c), the State
does not have an appeal as of right from the dismissal of its petition.

       Additionally, the MVHO Act does not provide a method of appeal for the State. In
section 55-10-614(a) of the MVHO Act, the Tennessee General Assembly specifically
provided that “[t]he defendant may appeal to the court of criminal appeals any final
action or judgment entered under this part, in the same manner and form as appeals in
criminal matters are heard.” Tenn. Code Ann. § 55-10-614(a) (emphasis added). The
MVHO Act did not include a similar provision providing an appeal by the State. “[W]hen
interpreting statutes, [the supreme 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.’” Adler, 92 S.W.3d at 400 (quoting Limbaugh v.
Coffee Medical Center, 59 S.W.3d 73, 84 (Tenn. 2001)). By expressing a method of
appeal for the defendant, the statute implies an exclusion of an appeal by the State.

       We disagree with the trial court’s conclusion that the MVHO Act is penal in
nature. See Goats v. State, 364 S.W.2d 889, 891 (1963) (The “revocation [of a license to
operate a motor vehicle upon the highways] is not a penalty), see also State v. Conley,
639 S.W.2d 435, 437 (Tenn. 1982) (citing Helvering v. Mitchell, 303 U.S. 391, 399-401
(1938)) (“the revocation of all driving privileges of one declared to be an habitual
offender under the motor vehicle habitual offender act ‘is nothing more than deprivation
of a privilege, is ‘remedial in nature’ and is not intended to have the effect of imposing
                                            -5-
‘punishment’ in order to vindicate public justice.”). We also disagree that the act is
ambiguous. See State v. Sammy L. Golden, No. 02C01-9611-CR-00393, 1997 WL
564261, at *2 n.1 (Tenn. Crim. App. Sept. 10, 1997) (noting that section 55-10-618(a)
“simply provide[s] an alternative procedure; the State may still pursue this classification
of the offender in a separate proceeding[]”), no perm. app. filed. However, because we
have concluded that the State does not have an appeal as of right under Tennessee Rule of
Appellate Procedure 3(c) from the dismissal of a petition to declare a defendant an
HMVO, we dismiss the State’s appeal.

                                     III. Conclusion

      For the aforementioned reasons, the State’s appeal is dismissed.


                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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