         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 26, 2004

                  RALPH E. SCATES v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Knox County
                              No. 78942 Ray L. Jenkins, Judge



                    No. E2004-00585-CCA-R3-CO - Filed January 21, 2005


The appellant, Ralph E. Scates, pled guilty to two counts of theft, attempted misdemeanor theft, and
simple possession of marijuana. He was placed on unsupervised probation for eleven (11) months
and twenty-nine (29) days. In January of 2004, the appellant filed a petition to expunge and seal
records in both the cases in which he pled guilty and in previous cases, including several that had
been dismissed or in which the grand jury had not returned a true bill. The trial court dismissed the
petition. The appellant filed a timely notice of appeal challenging the trial court’s dismissal of the
petition. Because the trial court properly denied the petition for expungement as to the cases which
resulted in convictions, we affirm that portion of the trial court’s judgment. Because the trial court
improperly denied expungement of the records relating to cases which were dismissed or where a
no true bill was returned by the grand jury, we remand the case to the trial court for expungement
of those records. Accordingly, we affirm in part, reverse in part, and remand the case to the trial
court.


Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed in Part and
                            Reversed in Part and Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which ALAN E. GLENN and J. C. MCLIN ,
JJ., joined.

Ralph E. Scates, pro se, Beaver, West Virginia.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; and
Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.
                                                     OPINION

                                               Factual Background



        From the scant record on appeal, it appears that on November 1, 2000, the appellant pled
guilty to two counts of theft, one count of attempted misdemeanor theft, and one count of simple
possession of marijuana. As a result, the appellant was placed on unsupervised probation for eleven
(11) months and twenty-nine (29) days. On January 13, 2004, the appellant filed a “petition to
expunge and seal records” in accordance with Tennessee Code Annotated section 40-27-109. In the
petition, the appellant listed several warrant and docket numbers that he wished to have expunged.
According to the trial court’s order, the status of the warrants and docket numbers was as follows:1

         Warrant No. 84254B - Dismissed
         Warrant No. 207621 - Dismissed
         Warrant No. 95370C - No true bill returned by the Grand Jury
         Warrant No. 95364C - No true bill returned by the Grand Jury
         Warrant No. 73913R - Dismissed
         Warrant No. 1736 - Case not found
         No. C79329 - Case not found

       The trial court dismissed the petition, finding that the petitioner was not entitled to
expungement on those cases in which he was convicted and that, as to the other cases, “the
Tennessee Bureau of Investigation requires an Expungement Order prepared by an attorney
following a specific form to be filed in order for the cases to be expunged.”

        The appellant filed a timely notice of appeal, challenging the trial court’s dismissal of the
petition.

                                                      Analysis

         The appellant argues on appeal that the trial court erred by denying his petition for
expungement. Specifically, he contends that the policy of the Tennessee Bureau of Investigation,
requiring an attorney to prepare an expungement order before cases can be expunged, violates the
First Amendment of the United States Constitution and the Bill of Rights. The State concedes that
the trial court erred “by not dismissing those cases which had been dismissed or for which a no true


         1
          Several other cases were listed in the appellant’s petition, including: (1) Docket No. 65117; (2) Docket No.
65925; (3) Docket No. 70012; and (4) Docket No. 69191. These cases were not specifically addressed by the trial court,
however, a printout from the Justice Information M anagement System attached to the petition indicates that all of these
cases were either bound over to the grand jury or resulted in convictions.

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bill was returned by the grand jury” but that the trial court properly denied the request for the
expungement of records for those cases which resulted in convictions.

        Tennessee Code Annotated section 40-32-101 provides for expungement of records. That
statute states:

       All public records of a person who has been charged with a misdemeanor or a felony,
       and which charge has been dismissed, or a no true bill returned by a grand jury, or a
       verdict of not guilty returned by a jury, and all public records of a person who was
       arrested and released without being charged, shall, upon petition by that person to the
       court having jurisdiction in such previous action, be removed and destroyed without
       cost to such person . . . .

Tenn. Code Ann. § 40-32-101(a)(1). The statute also provides that if a defendant petitions the court
after a court has entered a nolle prosequi in the defendant’s case, the court shall order the public
records expunged. Tenn. Code Ann. § 40-32-101(a)(3). Thus, the statute provides for the
expungement of criminal records in four specific situations: (1) upon dismissal of the charge; (2)
upon a return of no true bill; (3) upon a verdict of not guilty; and (4) upon the reversal of conviction
on appeal.

       The State notes at the outset of its brief that an appeal under Tennessee Rule of Appellate
Procedure 3 was not available from either the grant or denial of a petition for expungement of record
of criminal charges, but that a writ of certiorari was the proper method to correct a trial court’s
improper order concerning the expungement of records under Tennessee Code Annotated section
40-32-101(a)(1). We agree.

         Tennessee Appellate Procedure Rule 3(b) enumerates those situations in which a defendant
in a criminal action may appeal as of right. Tenn. R. App. P. 3(b). A defendant may appeal as of
right from a judgment of conviction upon a plea of not guilty, in certain circumstances in which there
has been a plea of guilty or nolo contendere, “from an order denying or revoking probation, and from
a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding.”
Id. An appeal from the denial of an expungement petition is not contemplated in the rule. Further,
in State v. Adler, 92 S.W.3d 397 (Tenn. 2002), the Supreme Court specifically held, “Because of the
plain and unambiguous language of [Appellate Procedure] Rules 3(b) and 3(c), we conclude that
neither the State nor a criminal defendant has the authority to appeal as of right an unfavorable ruling
concerning an expungement order under Rule 3.” Id. at 401.

        Despite the fact that an appeal is unavailable under Tennessee Rule of Appellate Procedure
3, we must determine whether to permit the appeal to proceed as a petition for a writ of certiorari,
as the Supreme Court did in Adler when it heard the State’s appeal that the trial court erroneously
granted an order of expungement. See id. at 401-03 (disagreeing with the State and concluding that
defendant convicted of lesser-included offense is entitled to have record expunged of any greater
offense for which jury returned not guilty verdict).


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       The common law writ of certiorari has been codified in Tennessee Code Annotated section
27-8-101. That section provides:

         The writ of certiorari may be granted whenever authorized by law, and also in all
         cases where an inferior tribunal, board, or officer exercising judicial functions has
         exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of
         the court, there is no other plain, speedy, or adequate remedy. This section does not
         apply to actions governed by the Tennessee Rules of Appellate Procedure.

Tenn. Code Ann. § 27-8-101. “Generally, the writ of certiorari is limited in application and does not
normally lie to inquire into the correctness of a judgment issued by a court with jurisdiction.” Adler,
92 S.W.3d at 401. Even so, “an appellate court is within its province” to grant the writ when the trial
court’s action is without legal authority. Id. A writ of certiorari is an order from a superior court to
an inferior tribunal to send a complete record for review, so that the court can determine whether that
tribunal has exceeded its jurisdiction, or has acted illegally, fraudulently or arbitrarily. Yokley v.
State, 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981). The writ is not available as a matter or right; its
grant or denial is within the sound discretion of the trial court and will not be reversed on appeal
unless there is an abuse of discretion. Boyce v. Williams, 389 S.W.2d 272, 277 (Tenn. 1965).

        Because the case herein involves an “allegation that the trial court acted without legal
authority in denying the petition,” and there is no other “plain, speedy, or adequate remedy,” we will
treat the appellant’s petition as a writ of certiorari. See Adler, 92 S.W.3d at 401.

        The trial court dismissed the petition on the basis that the “defendant is not entitled to have
the cases he pled guilty to expunged and the Tennessee Bureau of Investigation requires an
Expungement Order prepared by an attorney following a specific form to be filed in order for the
cases to be expunged.” Again, Tennessee Code Annotated section 40-32-101 states that a trial court
“shall” expunge records, on petition by a defendant, in cases in which the charges have been
dismissed or a no true bill is returned by the grand jury. A review of the record reveals that several
of the appellant’s cases were either dismissed or no true bill was returned by the grand jury,
including: (1) Warrant No. 84254B; (2) Warrant No. 207621; (3) Warrant No. 95370C; (4) Warrant
No. 95364C; and (5) Warrant No. 73913R.2 Thus, the trial court erred in denying the petition as to
these warrants. The trial court properly dismissed the petition relating to the cases which resulted
in a conviction or for which no record of the disposition appears in the record. Accordingly, we
reverse and remand the judgment of the trial court as to the warrants that were dismissed or where
no true bill was returned by the grand jury for the entry of an expungement order in accordance with
Tennessee Code Annotated section 40-32-101. We affirm the denial of the petition regarding the
cases that resulted in convictions and the cases for which no record of the disposition appeared in
the record.


         2
          The appellant also contended that the records with warrant numbers 1736 and C79329 should be expunged.
The appellant provided no record of the disposition of these cases, thus the trial court properly denied the request to have
these cases expunged.

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                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part,
and remanded for entry of an expungement order as contemplated by this opinion.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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