State of Tennessee v. Jacob Brown, II

10/13/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 29, 2020

STATE OF TENNESSEE v. JACOB BROWN, II

Appeal from the Criminal Court for Knox County

No. 115548 Steven W. Sword, Judge

No. E2019-01462-CCA-R3-CD

The defendant, Jacob Brown, II, appeals the Knox County Criminal Court’s order setting

aside an expunction order. As conceded by the State, the trial court lacked jurisdiction to

set aside the order, and we vacate the trial court’s judgment.

Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Nancyjane B. Sharp, Knoxville, Tennessee for the appellant, Jacob Brown, II.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Samyah G. Jurban,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On May 29, 2018, the defendant was found not guilty of several offenses by

reason of insanity. On October 17, 2018, the trial court issued an order of expunction as

agreed to by the defendant and the State. On May 22, 2019, the State moved to readdress

the prior order of expunction, urging the court to “reconsider previous actions mistakenly

taken” and to “reconsider matters that may affect the State’s public databases.” The trial

court appointed counsel to the defendant. On July 18, 2019, the trial court ordered that the

prior expunction order be set aside, concluding that “the order for expungement was not a

valid or legal order.” 1 Specifically, the court found that because the defendant had been

1

The courts of this state have used the terms expungement and expunction interchangeably as the

nominalization of the verb expunge. The verb expunge comes from the Latin word expungere which means

“‘prick out, blot out, mark (a name on a list) for deletion’ by pricking dots above or below it, literally ‘prick

found not guilty by reason of insanity, the court lacked jurisdiction to enter an expunction

order, and, consequently, the order was void. The trial court ordered the Knox County

Criminal Court Clerk’s Office “to reconstruct the public record to the extent possible from

the retained records of the Tennessee Bureau of Investigation,” including “at a minimum

the original indictment and judgment of” not guilty by reason of insanity.

In this timely appeal, the defendant argues that the trial court lacked

jurisdiction to hear the State’s motion and set aside the prior expunction order. The State

concedes that the trial court lacked jurisdiction and that the judgment should be vacated.

Whether the trial court had jurisdiction to entertain the State’s motion to re-

consider the October 2017 expunction order is a question of law, which we review de novo.

See State v. Allen, 593 S.W.3d 145, 153 (Tenn. 2020) (citations omitted); State v. Green,

106 S.W.3d 646, 648 (Tenn. 2003).

Our legislature has granted jurisdiction over petitions for expunction to “the

court in which the petitioner was convicted of the offense sought to be expunged.” T.C.A.

§ 40-32-101(g)(3). An order of expunction “becomes final thirty days after its entry, unless

a timely notice of appeal or appropriate post-trial motion is filed.” Allen, 593 S.W.3d at

154 (citing Green, 106 S.W.3d at 648; State v. Peele, 58 S.W.3d 701, 704 (Tenn. 2001);

State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)). “Once an order becomes final,

a trial court loses jurisdiction and generally has no power to modify or amend the order.”

Id. (citing Green, 106 S.W.3d at 648-49; Peele, 58 S.W.3d at 704; Pendergrass, 937

S.W.2d at 837).

Here, the trial court had jurisdiction to consider and rule on the agreed

petition for expunction. T.C.A. § 40-32-101(g)(3) (“A person seeking expunction shall

petition the court in which the petitioner was convicted of the offense sought to be

expunged . . . .”); see also State v. Cawood, 134 S.W.3d 159, 162-63 (Tenn. 2004) (“In

order to determine if a court has jurisdiction, we consider ‘whether or not it had the power

to enter upon the inquiry; not whether its conclusion in the course of it was right or

wrong.’”) (quoting Aladdin Indus., Inc. v. Associated Transp., Inc., 323 S.W.2d 222, 229

(Tenn. 1958)). To be sure, a judgment of not guilty by reason of insanity is not a ground

for expunction, see T.C.A. § 40-32-101(1)(F) (providing for expunction of records “[u]pon

a verdict of not guilty being returned, whether by a judge following a bench trial or by a

jury”); State v. Jennings, 130 S.W.3d 43 (Tenn. 2004) (recognizing that “a verdict of ‘not

guilty by reason of insanity’ is distinctly different from a verdict of ‘not guilty’” and

out,’” and is formed by adding the Latin stems “ex,” which means “out,” and “pungere,” which means “ ‘to

prick, stab.’” See Online Etymology Dictionary, http://www.etymonline.com. Expunction is a “noun of

action” derived from the “past participle stem of expungere.” See id. Expunction is also the term used by

the Code. For these reasons, we employ the term expunction rather than expungement.

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concluding that such a verdict is, consequently, ineligible for expunction under a former

version of Code section 40-32-101); however, the remedy for an erroneous grant of an

expunction is properly sought by direct appeal, see Tenn. R. App. P. 3(b), (c) (granting

both parties an appeal as of right “from a final order on a request for expunction”). In this

case, the trial court’s order of expunction became final on November 16, 2018, at which

time the trial court lost jurisdiction of the case. Consequently, the trial court lacked

jurisdiction to hear the State’s motion to re-consider the order of expunction.

Accordingly, the judgment of the trial court is vacated.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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