The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 2000 SESSION
March 17, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
ALFRED LEE MAULDIN, )
) NO. M1999-00532-CCA-R3-CD
Appellant, )
) MAURY COUNTY
VS. )
) HON. JIM T. HAMILTON,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Denial of Motion for Expungement)
FOR THE APPELLANT: FOR THE APPELLEE:
ALFRED LEE MAULDIN PAUL G. SUMMERS
Pro Se Attorney General and Reporter
1101 John A. Denie Rd.
P.O. Box 34550 MARVIN E. CLEMENTS, JR.
FCI-Memphis, TN 38184 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
252 N. Military Ave. Ste 202,
P.O. Box 459
Lawrenceburg 38464-0459
OPINION FILED:
AFFIRMED IN PART; REVERSED IN PART; REMANDED
JOE G. RILEY, JUDGE
OPINION
Defendant appeals as of right from the Maury County Circuit Court's
dismissal of his motion for expungement.1 Upon our examination of the record
presented for review, we hold the trial court properly denied relief as to all convicted
offenses but erred in denying relief as to the dismissed cases. We remand to the
trial court for entry of an order in accordance with this opinion.
BACKGROUND
On September 8, 1992, defendant’s case no. 7165 was retired from the
docket. The following day defendant entered nolo contendere pleas in case nos.
7306, 7307 and 7308, pleading to three sales of a controlled substance. On March
21, 1997, the trial court granted the state's motion to nolle prosequi case nos. 9110-
9114.
On May 18, 1999, defendant filed a rambling, confusing, inartfully drafted, pro
se petition to expunge the records in the above cases. On July 26, 1999, the trial
court entered an order indicating that the petition was “overruled and dismissed.”
This appeal followed.
ANALYSIS
Pursuant to Tenn. Code Ann. § 40-32-101(a), the defendant is not entitled
to expunge case nos. 7306, 7307 and 7308, in which he entered a plea of nolo
contendere. The trial court properly dismissed the request for expungement in
these cases since conviction offenses are not subject to expungement.
1
Defendant makes numerous other allegations and seeks various forms of relief.
However, the only issue relevant to this appeal is the request for expungement.
2
The retired case no. 7165 presents a unique issue. When a trial court retires
a case from the docket, the case is not dismissed and may be subject to further
prosecution. State ex rel. Underwood v. Brown, 244 S.W.2d 168, 171 (Tenn. 1951);
State ex rel. Lewis, v. State, 447 S.W.2d 42, 43 (Tenn. Crim App. 1969). A retired
case, which has not been dismissed, is not listed as subject to expungement under
Tenn. Code Ann. § 40-32-101. Thus, the trial court properly denied expungement
in this retired case. Upon remand, should the case be dismissed, the trial court
could then order expungement.
The state concedes petitioner is entitled to expungement in case nos. 9110-
9114. The statute provides that “upon petition in the court where a nolle prosequi
is entered, all public records shall be expunged.” Tenn. Code Ann. § 40-32-
101(a)(3); State v. Liddle, 929 S.W.2d 415 (Tenn. Crim. App. 1996). A defendant
is entitled to expungement in such cases, and the trial judge is without discretion in
denying such a request. See State v. McCary, 815 S.W.2d 220, 222 (Tenn. Crim.
App. 1991). Thus, upon remand, the trial court shall enter an order of expungement
as to case nos. 9110-9114.
The state contends petitioner’s request to expunge the “criminal history
record” maintained by the “Department of Correction” should be denied. It contends
petitioner has made no showing that such records exist. Furthermore, it contends
such records would be exempt as law enforcement records under Tenn. Code Ann.
§ 40-32-101(b). See State v. Neil Edward Bridges, C.C.A. No. 01C01-9508-CC-
00271, Grundy County (Tenn. Crim. App. July 26, 1996, at Nashville).
Upon remand, the trial court shall enter a standard order of expungement in
case nos. 9110-9114. Any “arrest histories, investigative reports or intelligence
information,” held by the Department of Correction or any other law enforcement
agency, that “are not open for inspection by members of the public” are exempt.
3
Tenn. Code Ann. § 40-32-101(b).
CONCLUSION
The judgment of the trial court denying expungement is AFFIRMED as to
case nos. 7165, 7306, 7307, 7308; REVERSED as to case nos. 9110-9114; and
this matter is REMANDED to the trial court for entry of an order consistent with this
opinion.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
ALAN E. GLENN, JUDGE
____________________________
WILLIAM B. ACREE, JR., SPECIAL JUDGE
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