                                                                                             08/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 18, 2018

              STATE OF TENNESSEE v. KENDALL SOUTHALL

               Appeal from the Circuit Court for Williamson County
            Nos. 1992-CR-916, 1013, 1045; 1994-CR-2571; 1995-CR-2701;
              2001-CR-7691;2002-CR-8614 James G. Martin III, Judge


                             No. M2017-01975-CCA-R3-CO


The Petitioner, Kendall Southall, appeals from the Williamson County Circuit Court’s denial
of his motion to terminate costs from his drug-related convictions between 1992 and 2002.
The Petitioner contends that the trial court erred by denying relief because multiple pending
civil actions existed to collect unpaid costs relative to the convictions and that the ten-year
statute of limitations period prohibits the State from attempting to collect the costs. We
dismiss the appeal because this court lacks jurisdiction to consider it.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., and JOHN EVERETT WILLIAMS, P.J., joined.

Daniel A. Horwitz (on appeal) and Joy S. Kimbrough (at hearing), Nashville, Tennessee, for
the appellant, Kendall Southall.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel;
Kim R. Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

        On April 6, 2017, the Petitioner filed a motion to terminate outstanding costs related
to his previous convictions occurring in 1992, 1994, 1995, 2001, and 2002. According to the
cost bills attached to his motion, the Petitioner still owed $4653 in case number 94CC1-
1992-CR-916, $4565.50 in case number 94CC1-1992-CR-1013, $2604 in case number
94CC1-1992-CR-1045, $3012.50 in case number 94CC1-1994-CR-2571, $2243 in case
number 94CC1-1995-CR-2701, $17.50 in case umber 94CC1-2001-CR-7691, and $3420.50
in case number 94CC1-2002-CR-8614. The motion stated that the Petitioner recalled that
the costs were paid fifteen to twenty-five years previously and that even if the costs were not
paid timely, the ten-year statute of limitations for collecting civil judgments had expired.
The Petitioner argued that he received no information about the alleged unpaid costs until
2016 and that the Department of Safety had never suspended or attempted to suspend his
driver’s license for non-payment of costs.

       The motion stated that in 2016, the Petitioner was indicted for unrelated charges but
that before the indictment was returned, a portion of the Petitioner’s assets, including his
personal cash, cash from his motorcycle club, and two vehicles, were seized pursuant to civil
asset forfeiture proceedings. The motion stated that a portion of the cash and the two
vehicles were returned to the Petitioner pursuant to a “settlement agreement” involving the
same prosecutor who initiated the 2016 criminal proceedings.

        The motion stated that in December 2015, the trial court clerk’s office, without
explanation, “renewed its interest in collecting” the alleged outstanding costs. The Petitioner
relied upon Tennessee Code Annotated sections 28-3-110(a) and 40-24-105(a) in arguing
that the alleged outstanding costs associated with his previous convictions were collectable
in the same manner as a civil judgment and were subject to the ten-year statute of limitations
period, which had since expired. The motion stated that the clerk’s office had not attempted
to collect the costs before December 2016, that the clerk’s office had not sought a judgment
to collect the costs as required by Code section 40-24-105(a), and that even if the clerk’s
office had obtained a judgment, the ten-year statute of limitations period had expired.

        The State responded with a motion to dismiss the Petitioner’s motion to terminate
costs. The State alleged that the costs sought by the clerk’s office were not civil judgments
and were never converted to civil judgments. The State alleged that in November 2016, the
clerk’s office issued an Affidavit of Execution on the Petitioner’s personal property in order
to satisfy the alleged outstanding costs. The State argued that Code section 28-3-110,
relative to the ten-year statute of limitations period, did not apply in this case because the
costs sought originated from criminal court judgments and were, therefore, a government
function. Alternatively, the State argued that Code section 28-3-110 was limited to civil
cases and did not restrict the collection of costs, fines, and taxes assessed in criminal matters
pursuant to Code section 40-24-105.

        On July 14, 2017, the trial court held a hearing on the Petitioner’s motion, but the
transcript of the hearing is not included in the appellate record. See T.R.A.P. 24(b). The
court entered a written order denying relief. The court found that the Petitioner was
convicted of various offenses between 1992 and 2010 and that the sentences had expired.
The court found that in 2016, the Petitioner was indicted for various drug-related offenses,
that the cases were still pending, and that after the indictment was returned, the Petitioner
received notice that he owed costs, taxes, fees, and fines, totaling more than $20,000 from
the pre-2016 cases. The court determined that the ten-year statute of limitations for
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collecting civil judgments pursuant to Code section 28-3-110(a) was inapplicable because no
pending civil action existed to collect a judgment, namely the unpaid taxes, costs, and fines,
from the Petitioner. The court denied the motion to terminate costs. This appeal followed.

        The Petitioner contends that the trial court erred by denying his motion, arguing that
civil actions to collect costs, taxes, and fines were pending at the time he filed his motion to
terminate costs, that the ten-year statute of limitations prohibited the State from collecting
the alleged unpaid costs, and that the State is not exempt from the limitations period. The
State responds that the Petitioner does not have an appeal as of right from the denial of the
motion to terminate costs and that the Petitioner should have sought a writ of certiorari from
this court. Alternatively, the State argues that the limitations period has no application in
this case.

       The Petitioner initiated his appeal in this case by timely filing a notice of appeal
pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Rule 3(b) provides a
right of appeal to a defendant in criminal cases

       from 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 . . . , 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 were apparent from the record
       of the proceedings already had. The defendant may also appeal as of right
       from an order denying or revoking probation, an order or judgment entered
       pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure,
       from a final judgment in a criminal contempt, habeas corpus, extradition, or
       post-conviction proceeding, and from a final order on a request for expunction.

Tenn. R. App. P. 3(b).

        In Jonathan C. Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877, *1
(Tenn. Crim. App. Aug. 18, 2010), perm. app. denied (Tenn. Nov. 15, 2010), the petitioner
filed a motion seeking the discharge of fines imposed as the result of a conviction for which
the sentence had previously expired. The trial court denied the motion, and this court
determined on appeal that Rule 3(b) does not expressly provide an appeal as of right for the
denial of a motion to discharge fines and dismissed the appeal for lack of jurisdiction. Id.
Similarly, in Douglas Boruff v. State, No. E2010-00772-CCA-R3-CO, 2011 WL 846063, at
*1 (Tenn. Crim. App. Mar. 10, 2011), the petitioner filed a motion to discharge fines
                                               -3-
pursuant to Code section 28-3-110 because he alleged the statute of limitations for paying the
fines had expired. The trial court denied the motion, and this court determined that Rule 3(b)
does not provide an appeal as of right from a motion to discharge fines. Id.

        As a result, we conclude that the Petitioner does not have an appeal as of right from
the denial of a motion to terminate costs. We note that the Petitioner should have submitted
a petition for a writ of certiorari from the trial court’s denial of the motion to terminate costs.
 See T.C.A. § 27-8-101; see also Stephen Wayne Lewis v. State, No. E2014-01376-CCA-
WR-CO (Tenn. Crim. App. Aug. 26, 2014) (order). In a similar case involving a motion to
reduce or to discharge fines and costs, this court treated the improperly filed appeal pursuant
to Rule 3(b) as a petition for a writ of certiorari in the interest of justice because the trial
court’s determinations were “contrary to [the] law.” State v. Jeffrey S. Zarnik, No. M2009-
00478-CCA-R3-CD, 2010 WL 4812749, at *2 (Tenn. Crim. App. Nov. 23, 2010); see State
v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998); see also T.C.A. § 27-8-101;
T.R.A.P 36(a). However, based upon the record before this court, the interest of justice does
not necessitate transforming the appeal into a petition for a writ of certiorari. Therefore, the
appeal is dismissed.

       In consideration of the foregoing and the record as a whole, we dismiss the appeal.




                                             ______________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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