                                FIRST DIVISION
                                 PHIPPS, C. J.,
                        ELLINGTON, P. J., and MCMILLIAN, J.

                        NOTICE: Motions for reconsideration must be
                        physically received in our clerk’s office within ten
                        days of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules/


                                                                          March 2, 2015




In the Court of Appeals of Georgia
 A14A2324. GIBBS v. BRIGHT et al.

      PHIPPS, Chief Judge.

      Indicted on numerous counts of sexual offenses, Troy Lee Gibbs was brought

to trial in the Superior Court of Wilkerson County, which proceeding ended by

mistrial after the jury failed to reach a verdict.1 At his second trial, the jury found

Gibbs guilty of nine counts of child molestation, two counts of enticing a child for

indecent purposes, and two counts of solicitation of sodomy; Gibbs was sentenced to

imprisonment.2 But Gibbs’s convictions were reversed by this court,3 and after the

case was remitted to the superior court in October 2007, an order of nolle prosequi


      1
          See Gibbs v. State, 287 Ga. App. 694-695 (652 SE2d 591) (2007).
      2
          See id.
      3
          Id. at 695.
was entered. Thereafter, in February 2014, Gibbs petitioned the Superior Court of

Wilkerson County, pursuant to Georgia’s record-restriction statute, OCGA § 35-3-37,

to restrict access to his criminal history record information for the underlying

offenses,4 and to grant him attorney fees incurred in pursuing said record restriction.

In his petition, Gibbs named as respondents the Wilkinson County District Attorney,

Fred Bright, as well as the Wilkinson County Sheriff’s Office. The superior court

conducted a hearing, then denied Gibbs’s petition. Gibbs appeals. For reasons that

follow, we affirm.

      At the hearing, the state argued that Gibbs’s petition was governed by

paragraph (j) (2) of OCGA § 35-3-37, which states:

      When an individual was convicted of an offense and was sentenced to
      punishment other than the death penalty, but such conviction was
      vacated by the trial court or reversed by an appellate court or other post-
      conviction court, the decision of which has become final by the
      completion of the appellate process, and the prosecuting attorney has not


      4
        OCGA § 35-3-37 (6) provides, “‘Restrict,’ ‘restricted,’ or ‘restriction’ means
that the criminal history record information of an individual relating to a particular
charge shall be available only to judicial officials and criminal justice agencies for
law enforcement or criminal investigative purposes or to criminal justice agencies for
purposes of employment in accordance with procedures established by the center and
shall not be disclosed or otherwise made available to any private persons or
businesses pursuant to Code Section 35-3-34.”)

                                          2
      retried the case within two years of the date the order vacating or
      reversing the conviction became final, such individual may petition the
      superior court in the county where the conviction occurred to restrict
      access to criminal history record information for such offense. . . . If a
      hearing is requested, . . . [t]he court shall hear evidence and shall
      determine whether granting an order restricting such criminal history
      record information is appropriate, giving due consideration to [1] the
      reason the judgment was reversed or vacated, [2] the reason the
      prosecuting attorney has not retried the case, and [3] the public’s interest
      in the criminal history record information being publicly available.


      As to the first of these three factors, the state cited that the judgment was

reversed because Gibbs’s trial counsel had rendered ineffective assistance.5

Regarding the second such factor, the state proffered that the reason it had not again

tried the case was that Gibbs had already served three years in prison after having two

one-week-long trials. The court then turned to the assistant district attorney who had

represented the state at Gibbs’s trials, and asked for “[a]nything on the second

[factor]?” She responded,

      [W]hen the case came back [from the Court of Appeals], because I had
      been the one that had been prosecuting it in both cases, there was some
      question as to, you know, was the State going to retry the case. We got


      5
          Gibbs, supra at 696-700 (1).

                                           3
       in touch with the victim who had moved and married. Didn’t want to
       come back and do this for a third time. Very frustrated with the system.
       And so I communicated that to Mr. Bright [the district attorney]. And he
       put that, the reason, that he did on there. But it was not a recanted, state
       this on the record, she did not recant. She did not say it didn’t happen.
       She didn’t say, you know oh well, you know, never mind. She just said:
       I don’t want to go through this a third time. And, additionally, our
       similar transaction witnesses didn’t want to go through it a third time.
       So, we had three victims saying: we don’t want to do this again. And so
       out of respect to them, they made the decision to dismiss the case.6


With respect to the third factor, the state asserted that it was important that the “public

know[] that [Gibbs] has been previously charged with being a child molester and

convicted, but reversed.”

       In ruling upon Gibbs’s petition, the superior court stated in its order:

       [T]he Court, pursuant to OCGA § 35-3-37 (j), finds as follows:
       Restricting petitioner’s criminal history record is not appropriate in
       considering those factors specific to this case, and it is in the public’s
       interest that the criminal history information be publicly available;
       Further, it is the finding of this Court that that public interest clearly
       outweighs the harm resulting to the Petitioner with that information


       6
        The court then stated, “Okay. Anything else?” At that point, counsel
representing the state in response to Gibbs’s petition asked Gibbs’s counsel, “You got
anything for her?” Gibbs’s counsel responded that she did not.

                                            4
      being publicly available. Petitioner’s requests to restrict . . . record and
      for attorney’s fees are therefore DENIED.


In this direct appeal,7 Gibbs contends that the superior court misapplied the cited

statutory provision, OCGA § 35-3-37 (j), advancing two arguments.

      1. Gibbs contends that the superior court erred by determining that subsection

(j) governed his petition. He points out that the order of nolle prosequi was entered

in March 2009. Therefore, Gibbs maintains in his brief, “When the prosecuting

attorney entered a nolle prosequi rather than waiting the two-year period referred to

in (j) (2), the (h) (2) (A) provision was triggered, thus qualifying [him] automatically

for record restriction rather than requiring the application of the discretionary (j) (2)

balancing test.”

      The provision Gibbs maintains governs his petition, OCGA § 35-3-37 (h) (2)

(A), states:

      Access to an individual’s criminal history record information, including
      any fingerprints or photographs of the individual taken in conjunction


      7
        See OCGA §§ 35-3-37 (j) (5) (“Any party may file an appeal of an order
entered pursuant to this subsection as provided in Code Section 5-6-34.”); 5-6-34 (a)
(12) (“Appeals may be taken to the Supreme Court and the Court of Appeals from the
following judgments and rulings of the superior courts . . . [a]ll judgments or orders
entered pursuant to Code Section 35-3-37.”).

                                           5
       with the arrest, shall be restricted by the center for the following types
       of dispositions: . . . (2) After indictment or accusation: (A) Except as
       provided in subsection (i) of this Code section,[8] all charges were
       dismissed or nolle prossed.


       We cannot agree with Gibbs that his petition is governed by OCGA § 35-3-37

(h) (2) (A), as opposed to OCGA § 35-3-37 (j) (2). The General Assembly, in

enacting paragraph (j) (2),9 set forth detailed criteria as to its applicability:10

       When an individual was convicted of an offense and was sentenced to
       punishment other than the death penalty, but such conviction was
       vacated by the trial court or reversed by an appellate court or other post-
       conviction court, the decision of which has become final by the
       completion of the appellate process, and the prosecuting attorney has not



       8
           Neither Gibbs nor the state has claimed that sub-section (i) was implicated.
       9
        See Ga. L. 2012, p. 899, §§ 6-2 (“repealing Code Section 35-3-37, relating to
inspection, purging, modifying, or supplementing of criminal records, and enacting
a new Code Section 35-3-37”), 9-1 (c) (providing for an effective date of July 1,
2013); OCGA § 35-3-37 (2012) (setting forth both versions of statute).
       10
         See generally Goldberg v. State, 282 Ga. 542, 544 (651 SE2d 667) (2007)
(“In construing a statute, the cardinal rule is to glean the intent of the legislature.
Language in one part of the statute must be construed in the light of the legislative
intent as found in the statute as a whole.”) (citation and punctuation omitted);
Meinken v. Burgess, 262 Ga. 863, 865 (2) (426 SE2d 876) (1993) (reiterating that, in
construing a statute, courts must “try to effectuate the intent of the legislature as
discerned from the act as a whole”).

                                            6
      retried the case within two years of the date the order vacating or
      reversing the conviction became final.11


While the General Assembly could have carved from such specific parameters an

exception, so as to exclude from that paragraph’s purview instances where a nolle

prosequi was entered within the referenced two-year period, it did not. Where, as

here, a statute contains both a general provision and a specific one, “the particular

provision must control, and the general provision must be taken to affect only such

cases within its general language as are not within the provisions of the particular

provision.”12

      In light of the foregoing, the trial court did not err in determining that OCGA

§ 35-3-37 (j) (2) governed Gibbs’s petition,13 as it is without question that the

underlying circumstances – including the conviction, sentencing, reversal, lack of a




      11
           OCGA § 35-3-37 (j) (2).
      12
        Mayor &c. of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429, 436-
437 (54 SE2d 260) (1949) (punctuation omitted); see generally Drake v. State, 170
Ga. App. 846, 847 (1) (318 SE2d 721) (1984) (noting various usages and effects of
an order of nolle prosequi).
      13
           See generally Goldberg, supra; Mayor, supra.

                                          7
subsequent retrial, and timing of Gibbs’s petition to restrict records– satisfied that

Code provision’s detailed applicability criteria.

         2. Alternatively, Gibbs contends that the trial court abused its discretion in

determining that the three factors set forth in OCGA § 35-3-37 (j) (2) weighed against

him.14

         At the hearing, Gibbs’s attorney addressed each factor as follows. Regarding

the first (the reason the judgment was reversed), Gibbs’s attorney pointed out that the

conclusion of ineffectiveness was premised, in part, upon Gibbs’s trial counsel’s

failure to present to the jury potentially exculpatory evidence.15 Countering the state’s

proffer with respect to the second factor (the reason the prosecuting attorney had not

tried the case again), Gibbs’s attorney claimed that the fact “that [Gibbs] had already

served some kind of punishment for a crime that he was never convicted of . . . should

weigh in his favor, rather than in the prosecution’s favor.” And turning to the third



         14
         See generally Meinken, supra at 866 (2) (contemplating a “balancing of
equities” by the superior court, and holding that “a superior court’s decision on
expungement will not be disturbed on appeal unless there has been an abuse of
discretion”).
         15
        See Gibbs, supra at 696-698 (1) (a) (i - ii) (citing evidence that the alleged
victim had accused other men of sexually molesting her, then later recanted the
accusations).

                                            8
factor (the public’s interest in the criminal history record information being publicly

available), Gibbs’s attorney asserted that Gibbs’s “personal private interest in being

free from the record outweighs the public interest in having that record available.”

      On appeal, however, Gibbs has cited no authority demonstrating that the

superior court erred in its determination that restricting his criminal history record

was not appropriate. The record confirms that, upon Gibbs’s petition, the court

convened a hearing, allowed the parties to present evidence and argument, and

invoked the correct legal standard. “[B]ecause potential harm to individuals is the

natural consequence of the maintenance and dissemination of criminal records . . .,

the balancing test should not be tipped in the defendant’s favor solely on the basis of

the potential harm that could accrue to a defendant in any given case.”16 Here, the

arguments and evidence presented to the superior court did not require a finding of




      16
        Meinken, supra; see OCGA § 35-3-37 (j) (2) (setting forth factors to be
considered by court when determining whether restricting criminal history record
information is appropriate).

                                          9
a diminished interest by the public in Gibbs’s criminal history record information;17

nor did they mandate a conclusion that restricting such information was appropriate.18

      Because Gibbs has failed to demonstrate merit in his contention that the trial

court erred by determining, based upon its consideration of the factors set forth in

OCGA § 35-3-37 (j) (2), that restricting his criminal history record information was

not appropriate, Gibbs has presented no basis for disturbing the denial of his petition.

      Judgment affirmed. Ellington, P. J., and McMillian, J., concur.




      17
         “For instance, if an arrest results from any illegality or misconduct on the part
of the police, the arrest record may not be indicative of the individual’s criminal
propensity and the maintenance of the record may therefore be of little value to [the
public].” Meinken, supra (citations omitted). See also Drake, supra (noting that “mere
entry of nolle prosequi does not indicate an absence of the commission of a criminal
act”).
      18
        See generally Meinken, supra at 865 (2) (noting Georgia’s “public policy
favoring the maintenance and dissemination of such records”).

                                           10
