State of Tennessee v. Cedric Lamar Moses ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 4, 2011
STATE OF TENNESSEE v. CEDRIC LAMAR MOSES
Direct Appeal from the Circuit Court for Dyer County
No. C06-223 R. Lee Moore, Judge
No. W2011-01448-CCA-R3-CD - Filed December 28, 2011
On appeal, the appellant challenges the trial court’s order denying his motion to
reinstate probation. Upon review, we conclude that the appellant does not have a Rule 3,
Tennessee Rules of Appellate Procedure, appeal as of right from the order. Therefore, the
appeal is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal is Dismissed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and A LAN E. G LENN, JJ., joined.
Noel H. Riley, II, Dyersburg, Tennessee, for appellant, Cedric Lamar Moses.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.
OPINION
I. Factual Background
On September 19, 2006, the appellant pled guilty to possession of .5 grams or more
of cocaine with the intent to sell or deliver. The trial court imposed an eight-year sentence,
six months of which was to be served in jail with the remainder to be served on probation.
Thereafter, on May 15, 2009, a jury convicted the appellant of two counts of facilitation of
first degree murder and one count of especially aggravated robbery. See State v. Aubrey
Tremaine Eisom & Cedric Moses, No. W2009-02098-CCA-R3-CD, 2010 WL 4540069, at
*1 (Tenn. Crim. App. at Jackson, Nov. 15, 2009), perm. to appeal denied, (Tenn. Mar. 9,
2011). On July 23, 2009, the trial court revoked the appellant’s probation because of the new
convictions and ordered the appellant to serve the balance of his sentence in confinement.
Thereafter, this court reversed the appellant’s convictions for facilitation of first degree
murder and especially aggravated robbery after concluding that there was insufficient
corroboration of an accomplice’s testimony. Id.
On January 13, 2011, the appellant, acting pro se, filed a “Motion to Reinstate
Probation,” arguing that the trial court should reinstate his probation because this court had
reversed the convictions that led to the probation revocation. On April 19, 2011, the trial
court held a hearing on the motion. After the hearing, the court found by a preponderance
of evidence that the appellant was involved in the crimes and thus the probation revocation
was justified.
II. Analysis
The appellant argues that the trial court erred by denying his motion to reinstate his
probation because the convictions underlying the probation revocation were reversed on
appeal. He further argues that the trial court abused its discretion by ruling that the evidence
supported the finding that a probation violation had occurred. The State contends that the
trial court’s order denying the motion is not an action from which an appeal lies under
Tennessee Rule of Appellate Procedure 3(b). We agree with the State.
Tennessee Rule of Appellate Procedure 3(b) limits a criminal defendant’s appeal as
of right to
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 pursuant to and in
compliance with the requirements of Rule 37(b)(2)(i) or (iv) of
the Tennessee Rules of Criminal Procedure, 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 are apparent from the record of the
proceedings already had. The defendant may also appeal as of
right from an order denying or revoking probation, and from a
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final judgment in a criminal contempt, habeas corpus,
extradition, or post-conviction proceeding.
Our case law has firmly established that “[u]nlike civil litigants, who have an appeal
as of right from any final judgment, parties in criminal cases do not always have an appeal
as of right under the Rules of Appellate procedure.” State v. Lane, 254 S.W.3d 349, 352
(Tenn. 2008). Our supreme court has stated that, based upon “the Latin maxim of expressio
unius est exclusio alterius, meaning ‘the expression of one thing implies the exclusion of all
things not mentioned,’” a party in a criminal case may not appeal from an action not
specifically included in Rule 3. State v. Adler, 92 S.W.3d 397, 400 (Tenn. 2002) (quoting
Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 84 (Tenn. 2001)). This court has
reiterated this principle, explaining that “[i]f an order is not specifically listed in Rule 3(b)
as one of the types of orders or judgments from which an appeal as of right exists, then there
is no appeal as of right from that order.” State v. Jay Bean, No. M2009-02059-CCA-R3-CD,
2011 WL 917038, at *2 (Tenn. Crim. App. at Nashville, Mar. 16, 2011). Rule 3 does not
specifically provide for an appeal as of right from a “Motion to Reinstate Probation.”
Therefore, we conclude that the appellant’s appeal should be dismissed. See Jonathon C.
Hood v. State, No. M2009-00661-CCA-R3-PC, 2010 WL 3244877, at *1 (Tenn. Crim. App.
at Nashville, Aug. 18, 2010), perm. to appeal denied, (Tenn. 2010).
III. Conclusion
In sum, we conclude that the appeal should be dismissed.
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NORMA MCGEE OGLE, JUDGE
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