         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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