IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 1, 2011 Session
STATE OF TENNESSEE v. L.W.1
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 2005D2715 J. Randall Wyatt, Jr., Judge
No. M2009-02132-SC-R11-CD - Filed August 17, 2011
AND
K.F. v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 2005C1625 Steve R. Dozier, Judge
No. M2009-00700-SC-R11-CD - Filed August 17, 2011
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
1
Each of the parties filed motions requesting permission to proceed by pseudonym. In view of our
holding in these cases, we have granted the motions and replaced the defendants’ names with their initials.
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.
Tenn. R. App. P. 11 Appeal by Permission;
Judgment of the Court of Criminal Appeals Affirmed; Case Remanded
J ANICE M. H OLDER, J., delivered the opinion of the Court, in which G ARY R. W ADE, W ILLIAM
C. K OCH, J R., and S HARON G. L EE, JJ., joined. C ORNELIA A. C LARK, C.J., not participating.
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
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 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
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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 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
2
The Adler Court considered the State’s appeal of the expungement order as an appeal in a criminal
action. Adler, 92 S.W.3d at 399-400. In civil actions, of course, “every final judgment entered by a trial
court . . . is appealable as of right.” Tenn. R. App. P. 3(a).
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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., 276 S.W.2d 728,
728-29 (Tenn. 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, 75 S.W. 1012,1012 (Tenn. 1903)). The common law
writ of certiorari in criminal cases predates the Tennessee Constitution. Tenn. Cent. R.R.,
75 S.W. at 1012-13. The inclusion of a provision in our original constitution for writs of
certiorari, Tenn. Const. art. VI, §§ 6-7 (1796), was to guarantee the availability of the writ
in civil cases, as opposed to the previously exclusive use of the writ in criminal cases. Tenn.
Cent. R.R., 75 S.W. at 1012-13. These constitutional provisions refer exclusively to civil
cases, and the constitutional requirement for “oath or affirmation” applies only to civil cases.
Article VI, section 10 of the Tennessee Constitution contains a similar provision: “The
Judges or Justices of the Inferior Courts of Law and Equity, shall have power in all civil
cases, to issue writs of certiorari to remove any cause or the transcript of the record thereof,
from any inferior jurisdiction, into such court of law, on sufficient cause, supported by oath
or affirmation.” See also Tenn. Cent. R.R., 75 S.W. at 1012-13 (“[I]n order to settle the
matter beyond all controversy, a provision was placed in its first Constitution in substance
the same as that contained in the present Constitution . . . .”).
The General Assembly codified the common law writ of certiorari in Tennessee Code
Annotated section 27-8-101 (2000). Adler, 92 S.W.3d at 401. Section 27-8-101 provides:
The writ of certiorari may be granted whenever authorized by law, and also in
all cases where an inferior tribunal, board, or officer exercising judicial
functions has exceeded the jurisdiction conferred, or is acting illegally, when,
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in the judgment of the court, there is no other plain, speedy, or adequate
remedy.
By its terms, the statute recognizes that the common law writ of certiorari was already
“authorized by law,” and the statute contains additional instances when the writ of certiorari
may be used. See Tenn. Code Ann. § 27-8-101.
Tennessee Code Annotated section 27-8-104(a) (2000) describes the power of the
circuit and chancery courts to grant writs of certiorari in civil cases: “The judges of the
inferior courts of law have the power, in all civil cases, to issue writs of certiorari to remove
any cause or transcript thereof from any inferior jurisdiction, on sufficient cause, supported
by oath or affirmation.” Tenn. Code Ann. § 27-8-104(a) (emphasis added). Tennessee Code
Annotated section 27-8-106 describes the procedure by which a petition for writ of certiorari
is verified when “oath or affirmation” and “sufficient cause” are required by section 104.
The verification and recitation requirements of section 27-8-106, therefore, apply to petitions
for writs of certiorari filed in civil cases pursuant to section 27-8-104.
No statute imposes similar procedural requirements on petitions for writs of certiorari
in criminal cases. We therefore hold that the failure to follow the procedural requirements
of section 27-8-106 for petitions for writ of certiorari in civil cases did not deprive the Court
of Criminal Appeals of jurisdiction to hear these appeals.
B. Partial Expungement
A person who satisfies the criteria in Tennessee Code Annotated section 40-32-101
(2006 & Supp. 2010) is entitled to removal and destruction of public records. K.F. and L.W.
argue that they are entitled to expungement of the records for the charges dismissed from
their multi-count indictments. The State counters that subsection 40-32-101(a)(1)(E)
prohibits expungement of any records related to charges in a multi-count indictment when
a defendant has been convicted of at least one count.
This issue presents a matter of statutory interpretation to which we apply a de novo
standard of review. State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010). Our role in
statutory interpretation is to carry out legislative intent without broadening or restricting the
statute beyond its intended scope. Id. We find legislative intent in the plain and ordinary
meaning of the statutory language when it is unambiguous. Id. When the statute’s meaning
is in question, however, we may rely on rules of statutory construction. Id.
The expungement statute is “designed to prevent citizens from being unfairly
stigmatized” by criminal charges. Adler, 92 S.W.3d at 403. Cognizant of this purpose, we
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have construed the word “charge” in the expungement statute to mean “‘the specific crime
the defendant is accused of committing.’” Adler, 92 S.W.3d at 402 (quoting Black’s Law
Dictionary (6th ed. 1990)). At the time of the decision in Adler, the expungement statute
provided in pertinent part: “All public records of a person who has been charged with a
misdemeanor or a felony, and which charge has been dismissed . . . or a verdict of not guilty
returned by the jury . . . shall . . . be removed and destroyed without cost to such person . . . .”
Tenn. Code Ann. § 40-32-101(a)(1) (Supp. 2002). We therefore held that “a defendant who
is convicted of a lesser included offense of the offense sought in the indictment or
presentment is entitled to have the record expunged of any greater charge(s) for which the
jury finds the defendant not guilty.” Adler, 92 S.W.3d at 403.
Fewer than five months after our decision in Adler, the General Assembly amended
the expungement statute. See Act of May 8, 2003, ch. 175, 2003 Pub. Acts. 292 (codified
as amended at Tenn. Code Ann. § 40-32-101 (Supp. 2010)). The amended statute now
provides:
(A) All public records of a person who has been charged with a misdemeanor
or a felony shall, upon petition by that person to the court having jurisdiction
in the previous action, be removed and destroyed without cost to the person,
if:
(i) The charge has been dismissed;
....
(E) A person shall not be entitled to the expunction of such person’s records
in a particular case if the person is convicted of any offense or charge,
including a lesser included offense or charge.
Tenn. Code Ann. § 40-32-101(a)(1).
The amendment precludes expungement of a conviction for “any offense or charge,
including a lesser included offense or charge.” Tenn. Code Ann. § 40-32-101(a)(1)(E). The
language is unambiguous. A person who is convicted of a lesser included offense is not
entitled to have the records of any greater charges expunged, thus effectively abrogating that
part of our decision in Adler. The language is equally clear that the preclusion against
expungement is not limited to lesser included offenses. The statute prohibits expungement
when a person is convicted of “any offense or charge,” including a lesser “charge.” Tenn.
Code Ann. § 40-32-101(a)(1)(E).
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This language “any offense or charge” recognizes that the law permits a conviction
for an uncharged offense under certain circumstances. For tactical reasons, a person may
choose to plead guilty to an offense that is not charged in the indictment and is not a lesser
included offense of the indicted offense. See Studdard v. State, 182 S.W.3d 283, 286-88
(Tenn. 2005) (holding that the trial court had subject matter jurisdiction to accept the
defendant’s guilty plea to incest even though it was not a lesser included offense of the
indicted offense of rape of a child). Therefore, a person who is convicted of any offense or
charge arising from an individual count in an indictment or presentment is not entitled to
expungement of records relating to that count. The amendment precludes expungement for
a conviction for a charged or uncharged offense, including a lesser included offense or a
lesser charge, arising from an individual count.
The State argues that the General Assembly intended section 40-32-101(a)(1)(E) to
prohibit expungement of all counts in a multi-count indictment or presentment if any of the
counts in the indictment results in a conviction. The State bases its argument on the use of
the word “case” qualifying those records not subject to expungement: “A person shall not
be entitled to the expunction of such person’s records in a particular case if the person is
convicted of any offense or charge, including a lesser included offense or charge.” Tenn.
Code Ann. § 40-32-101(a)(1)(E) (emphasis added). The State contends that the word “case”
refers to the entire criminal proceeding that is brought by filing an indictment or presentment,
not the individual counts within it.
The word “case” is used in a similar context in another subsection of the expungement
statute providing for expungement when a nolle prosequi is entered: “Upon petition by a
defendant in the court which entered a nolle prosequi in the defendant’s case, the court shall
order all public records expunged.” Tenn. Code Ann. § 40-32-101(a)(3) (Supp. 1996)
(emphases added). The Court of Criminal Appeals addressed the right to expungement in
State v. Liddle, 929 S.W.2d 415, 415 (Tenn. Crim. App. 1996).3 In Liddle, the defendant
was charged with six separate counts of aggravated battery in a single indictment. In
exchange for his plea of guilty to one count, the prosecutor entered a nolle prosequi on the
remaining five counts. Because the defendant had pleaded guilty to one count of a multi-
count indictment, the trial court denied the petition to expunge the other five counts. The
Court of Criminal Appeals reversed, finding no indication that the right to expungement
applies only to an entire indictment as opposed to individual charges within an indictment.
Id. at 415.
3
With the exception of the replacement of “the court which entered” with “the court that entered”
by Act of May 17, 2007, ch. 363, § 2, 2007 Tenn. Pub. Acts 474, 476, there has been no change in the
language of subsection 40-32-101(a)(3) since the decision in Liddle.
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We agree with the Court of Criminal Appeals’ construction of the word “case” in
Liddle. We presume that the General Assembly intends the same meaning throughout a
statute for the same language used in the same context. Madison Suburban Util. Dist. v.
Carson, 232 S.W.2d 277, 280 (Tenn. 1950). Moreover, we presume that the General
Assembly has knowledge of its prior enactments and is fully aware of any judicial
constructions of those enactments. Davis v. State, 313 S.W.3d 751, 762 (Tenn. 2010). The
General Assembly was aware of the construction of the word “case” in Liddle when it used
the same word in a similar context in Tennessee Code Annotated section 40-32-101(a)(1).
We therefore hold that a conviction for one count in a multi-count indictment or presentment
does not preclude expungement of the records relating to a separate count when the criteria
of section 40-32-101 have been satisfied.4
K.F. is entitled to the expunction of all public records of her charges of harassment
and aggravated criminal trespass, which were dismissed. No conviction for any offense or
charge, including a lesser included offense or charge, arose from these counts in the
indictment. Her conviction for domestic assault arose from a separate count in the
indictment.
L.W. is entitled to the expunction of all public records of her charge of felony
possession of cocaine. No conviction for any offense or charge, including a lesser included
offense or charge, arose from this count in the indictment. Her conviction for misdemeanor
possession of marijuana arose from a separate count in the indictment. Although the trial
court concluded that L.W. was not entitled to partial expungement due to the “intertwined”
nature of the charges, the State has not argued on appeal to this Court that the intertwined
nature of the charges prohibits expungement.
III. Conclusion
We hold that the procedural requirements of Tennessee Code Annotated section
27-8-106 do not apply to petitions for writ of certiorari filed in criminal cases. The failure
to follow these procedural requirements, therefore, did not deprive the Court of Criminal
Appeals of certiorari jurisdiction to hear the appeals from the expungement orders in these
cases. We further hold that a conviction for one count in a multi-count indictment or
4
We observe that applying the State’s definition of “case” to Tennessee Code Annotated subsection
40-32-101(a)(3) would contravene legislative intent. The State’s interpretation of the word “case” would
require the expunction of all public records in a “case” in which a court has entered a nolle prosequi. The
expungement would extend to charges to which a defendant has pleaded guilty as well as those that were
nolle prossed. See Tenn. Code Ann. § 40-32-101(a)(3). The General Assembly clearly intended that
expungement would not extend to charges to which a defendant has been convicted or has pleaded guilty.
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presentment 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, reversing the denial of the requests for partial expungement and remanding to the
trial courts for entry of orders requiring expungement of all records relating to the dismissed
charges in the respective cases. Costs of these appeals are taxed to the State of Tennessee.
_________________________________
JANICE M. HOLDER, JUSTICE
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