State v. LW

350 S.W.3d 911, 2011 Tenn. LEXIS 759
CourtTennessee Supreme Court
DecidedAugust 17, 2011
DocketM2009-02132-SC-R11-CD
StatusPublished

This text of 350 S.W.3d 911 (State v. LW) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. LW, 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. 2011).

Opinion

350 S.W.3d 911 (2011)

STATE of Tennessee
v.
L.W.[1] and
K.F.
v.
State of Tennessee.

Nos. M2009-02132-SC-R11-CD, M2009-00700-SC-R11-CD.

Supreme Court of Tennessee, at Nashville.

June 1, 2011 Session.
August 17, 2011.

*913 Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Mark A. Fulks, Senior Counsel, and Deshea Dulany Faughn and Lacy Elaine Wilber, Assistant Attorneys General, for the appellant, State of Tennessee.

Emma Rae Tennent, Assistant Public Defender (on appeal) and Tyler Yarbro (at trial), Nashville, Tennessee, for the appellee, L.W.

Doug Thurman, Nashville, Tennessee, for the appellee, K.F.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the Court, in which GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

In these two cases, consolidated for oral argument, defendants entered guilty pleas to one count in their respective indictments in exchange for dismissal of other counts. In both cases, the trial court denied their subsequent requests for expungement of the dismissed charges. Both defendants filed petitions for writ of certiorari. The Court of Criminal Appeals reversed both cases and remanded for entry of orders requiring the requested partial expungement. We granted the State's applications for permission to appeal and ordered supplemental briefing on the issue of whether the Court of Criminal Appeals lacked subject matter jurisdiction. We hold that the procedural requirements for petitions for writ of certiorari set forth in Tennessee Code Annotated section 27-8-106 (2000) do not apply in criminal cases. We further hold that a conviction for one count in an indictment does not preclude expungement of the records relating to a dismissed charge in a separate count. Accordingly, we affirm the judgment of the Court of Criminal Appeals in both cases.

I. Facts and Procedural History

In July 2005, the Davidson County Grand Jury returned a three-count indictment against K.F. charging her with domestic assault, harassment, and aggravated *914 criminal trespass arising from incidents occurring on three separate days. On September 8, 2005, she entered a guilty plea to domestic assault, and the other counts were dismissed. On January 22, 2009, she filed a petition to expunge the dismissed charges. Following a hearing, the trial court denied the petition, concluding that the expungement statute precludes expungement of a dismissed charge when a defendant has been convicted of another count in the indictment. On appeal by petition for writ of certiorari, the Court of Criminal Appeals reversed the trial court and ordered expungement of the dismissed charges, holding that each count of an indictment represents a separate case for purposes of expungement.

In October 2005, the Davidson County Grand Jury returned a two-count indictment against L.W. charging her with felony possession of cocaine and misdemeanor possession of marijuana arising from a traffic stop. On February 1, 2006, she entered a guilty plea to the misdemeanor marijuana charge, and the felony cocaine charge was dismissed. On July 28, 2009, she filed a motion to expunge the dismissed charge. Following a hearing, the trial court denied the motion, concluding that a conviction for one count does not necessarily preclude expungement of other counts in the indictment but that L.W. was not entitled to partial expungement because her two counts were "impossibly intertwined." On appeal by petition for writ of certiorari, the Court of Criminal Appeals reversed and ordered partial expungement without addressing the issue of the "intertwined" nature of the charges.

In each case, we granted the State's application for permission to appeal. We consolidated the cases for the purpose of consideration of the common issues.

II. Analysis

Two issues are before us. The first issue, a threshold matter that we raised, is whether the failure to follow the procedures for petitions for writ of certiorari set forth in Tennessee Code Annotated section 27-8-106 (2000) deprived the Court of Criminal Appeals of jurisdiction to hear these appeals. The second issue is whether a conviction for one count in an indictment precludes expungement of a dismissed charge in a separate count. We address each of these issues in turn.

A. Writ of Certiorari

The Tennessee Rules of Appellate Procedure do not provide for an appeal as of right from an unfavorable ruling concerning an expungement order. See State v. Adler, 92 S.W.3d 397, 401 (Tenn. 2002).[2] However, parties may appeal from expungement orders by way of the common law writ of certiorari. Id. In Adler, we did not discuss whether the procedural requirements in Tennessee Code Annotated section 27-8-106 apply in such appeals. Instead, the Court considered the State's appeal as a petition for writ of certiorari and addressed the merits of the substantive issue presented. Id. at 401-03.

The statutory provisions governing petitions for writs of certiorari establish certain procedures. These statutory procedures include that "[t]he petition for certiorari may be sworn to before the clerk of the circuit court, the judge, any judge of the court of general sessions, or a notary public, and shall state that it is the first application for the writ." Tenn.Code Ann. § 27-8-106. Thus, the statutory procedures *915 include both a verification requirement (that the petition be "sworn to") and a recitation requirement (that the petition "state that it is the first application for the writ"). Neither K.F.'s nor L.W.'s petition for writ of certiorari filed in the Court of Criminal Appeals satisfied the verification or recitation requirements of section 27-8-106.

Although the State did not challenge the procedure used in either appeal, Tennessee Rule of Appellate Procedure 13(b) obligates this Court to consider subject matter jurisdiction whether or not the issue is raised or conceded by a party. A determination of jurisdiction is a question of law, which we review de novo with no presumption of correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

This Court has held that a petition for writ of certiorari from the decision of a board or commission pursuant to Tennessee Code Annotated section 27-9-102 (2000) must satisfy the verification and recitation requirements of section 27-8-106 to confer subject matter jurisdiction on the court. Bd. of Prof'l Responsibility v. Cawood, 330 S.W.3d 608, 609 (Tenn.2010). When a statute confers certiorari jurisdiction, we have strictly construed the procedural requirements imposed by statute. See Depew v. King's, Inc., 197 Tenn. 569, 276 S.W.2d 728, 728-29 (1955).

The common law writ of certiorari, however, does not owe its existence to statute or to the Tennessee Constitution. See State v. Johnson, 569 S.W.2d 808, 812 (Tenn.1978) (quoting Tenn. Cent. R.R. v. Campbell, 109 Tenn. 640, 75 S.W.

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Board of Professional Responsibility v. Cawood
330 S.W.3d 608 (Tennessee Supreme Court, 2010)
State v. Marshall
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Terrance Lavar Davis v. State of Tennessee
313 S.W.3d 751 (Tennessee Supreme Court, 2010)
State v. Adler
92 S.W.3d 397 (Tennessee Supreme Court, 2002)
Madison Suburban Utility Dist. v. Carson
232 S.W.2d 277 (Tennessee Supreme Court, 1950)
Northland Insurance Co. v. State
33 S.W.3d 727 (Tennessee Supreme Court, 2000)
Studdard v. State
182 S.W.3d 283 (Tennessee Supreme Court, 2005)
Depew v. King's, Inc.
276 S.W.2d 728 (Tennessee Supreme Court, 1955)
State v. Johnson
569 S.W.2d 808 (Tennessee Supreme Court, 1978)
State v. Liddle
929 S.W.2d 415 (Court of Criminal Appeals of Tennessee, 1996)
State v. L.W.
350 S.W.3d 911 (Tennessee Supreme Court, 2011)
Tennessee Central Railroad v. Campbell
109 Tenn. 640 (Tennessee Supreme Court, 1902)

Cite This Page — Counsel Stack

Bluebook (online)
350 S.W.3d 911, 2011 Tenn. LEXIS 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lw-tenn-2011.