Court of Criminal Appeals of Tennessee, Nashville
Session: December 13, 2017
from the Circuit Court for Lewis County No. 2016-CR-74 Joseph
appeal, the State challenges the trial court's
application of the general savings statute to the
Defendant's theft conviction, which occurred prior to the
amendment of the theft statute, see T.C.A.
§§ 39-14-103 (2014) (theft); 39-14-105 (2014)
(amended 2017). Because no appeal as of right lies for the
State pursuant to Tennessee Rule of Appellate Procedure 3 or
Tennessee Code Annotated section 40-35-402, this court lacks
jurisdiction to review this issue. Accordingly, we dismiss
this appeal. We nevertheless detect errors in the judgment
and remand for entry of a corrected judgment to reflect a
Class A misdemeanor consistent with the amended theft
R. App. P. 3 Appeal as of Right; Appeal Dismissed; Remanded
for Entry of Corrected Judgment.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Kim R. Helper,
District Attorney General; and Stacey Edmonson and Sean
Duddy, Assistant District Attorneys General, for the
appellant, State of Tennessee.
Richard Boehms, Hohenwald, Tennessee, for the appellee,
Camille R. McMullen, J., delivered the opinion of the court,
in which Norma McGee Ogle, J. joined. Timothy L. Easter, J.,
filed a dissenting opinion.
CAMILLE R. McMULLEN, JUDGE
facts of this case are not in dispute. Between July 2 and
July 5, 2016, the Defendant broke into the main office of the
Lewis County landfill and stole several items, including a
chainsaw, muzzleloader rifle, handheld scanner, and two
laptop computers. An investigation ensued, and the Defendant
ultimately admitted to breaking into the landfill and
stealing the items, valued between $500 and $1, 000. On March
8, 2017, pursuant to a plea agreement, the Defendant
attempted to plead guilty to theft of property valued over
$500 and attempted burglary in exchange for a three-year
concurrent term of imprisonment as a Range II
offender. The trial court inquired as to the
applicability of the amended theft statute, and the State and
defense counsel agreed that the Defendant should be sentenced
based on the law in effect at the time of the offense. The
case was continued until April 5, 2017, and the Defendant
entered an open guilty plea to theft of property valued over
$500 and attempted burglary as a Range II, offender. It was
then reset for sentencing and memoranda on the applicability
of the amended theft statute.
May 17, 2017 sentencing hearing, the trial court stated that
"the only way for the [c]ourt to apply all of the law
that applie[d] in this circumstance[, ]" including the
savings statute in Tennessee Code Annotated section
39-11-112, was to impose a misdemeanor sentence but classify
the offense as a felony. Accordingly, the trial court imposed
a sentence of eleven months and twenty-nine days for the
theft conviction and reflected it as a Class E felony on the
judgment form. It further imposed a concurrent three-year
sentence for the attempted burglary. It is from this judgment
that the State now appeals. The Defendant did not appeal.
first question in any appeal is whether we have jurisdiction.
It is axiomatic that the State has no right to a writ of
error or to an appeal in a criminal prosecution, unless it is
expressly conferred by a constitutional provision or statute.
Arizona v. Manypenny, 451 U.S. 232 (1981);
Carroll v. United States, 354 U.S. 394, 399 (1957);
United States v. Sanges, 144 U.S. 310 (1892).
Manypenny set out the twofold concern underlying the
presumption against government criminal appeals:
Both prudential and constitutional interests contributed to
this tradition. The need to restrict appeals by the
prosecutor reflected a prudential concern that individuals
should be free from the harassment and vexation of unbounded
litigation by the sovereign. This concern also underlies the
constitutional ban against double jeopardy . . . . In
general, both concerns translate into the presumption that
the prosecution lacks appellate authority absent express
legislative authorization to the contrary.
Mannypenny, 451 U.S. at 246 (internal citations
omitted). For these reasons, State appeals in criminal cases
have been historically viewed as "something unusual,
exceptional, not favored." United States v.
Carrillo-Bernal, 58 F.3d 1490, 1494 (10th Cir. 1995)
(providing a detailed historical progression of the grounds
upon which the government may appeal) (citing Carroll v.
United States, 354 U.S. at 400); see also State v.
Meeks, 262 S.W.3d 710, 718 (Tenn. 2008) (noting that at
common law, the State was not afforded the right to appeal in
criminal cases). Accordingly, when a statute affords the
State the right to an appeal in a criminal proceeding, the
statute will be strictly construed to apply only to the
circumstances defined in the statute. State v.
Meeks, 262 S.W.3d at 718 (citing Carroll v. United
States, 354 U.S. at 400; State v. Adler, 92
S.W.3d 397, 400 (Tenn. 2002)). If the text of a statute is
"clear and unambiguous, we need not look beyond the
plain language of the text to ascertain its meaning."
State v. Rowland, 520 S.W.3d 542, 545 (Tenn. 2017).
notice of appeal, the State does not identify the statute
upon which it relies to confer appellate jurisdiction. Rules
3, 9, and 10 of the Tennessee Rules of Appellate Procedure
are the typical avenues for appeal. Rules 9 and 10 govern
interlocutory and extraordinary appeals and are inapplicable.
Rule 3(c) provides:
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 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). None of the enumerated circumstances
in Rule 3(c) apply. The only remaining option under this
section is Rule 36 of the Tennessee Rules of Criminal
Procedure. Because Rule 36 provides for an appeal only to
"correct clerical mistakes in judgments, orders, or
other parts of the record, and errors in the record arising
from oversight or omission[, ]" which is not the case
here, Rule 36 is inapplicable. Moreover, Rule 36.1 requires
the "filing [of] a motion to correct an illegal sentence
in the trial court in which the judgment of conviction was
entered[, ]" which did not occur here; therefore, Rule
36.1 is similarly inapplicable. See State v. Ashley N.
Menke, No. M2017-00597-CCA-R3-CD, 2018 WL 2304275, at *3
(Tenn. Crim. App. May 21, 2018) ...