                                FOURTH DIVISION
                                  DOYLE, P. J.,
                             MILLER and DILLARD, JJ.

                     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/


                                                                     January 23, 2015




In the Court of Appeals of Georgia
 A14A2359. HAWKINS v. THE STATE.                                               DO-087 C

       DOYLE, Presiding Judge.

       Following the grant of his discretionary application, William Hawkins appeals

from the trial court’s order denying his petition for removal from sex offender

registration requirements. For the reasons set forth below, we vacate the trial court’s

order and remand the case.

       The record shows that in September 1991, when Hawkins was 16 years old, he

entered a nolo contendere plea to attempted sexual battery in Florida and was

sentenced to two years of “community control” followed by ten years of probation.

In October 2013, Hawkins filed a petition for removal from sex offender registration

requirements. The trial court dismissed the petition for failure to file a civil initiation
  form pursuant to OCGA § 9-11-13 (b),1 and on December 31, 2013, it denied

  Hawkins’s subsequent motion to set aside the dismissal order.2




       1
         OCGA § 9-11-3 (b) provides: “At the time of filing the complaint for a civil action
in superior court or state court, the plaintiff shall file the appropriate civil case filing form
with the clerk of the court. The form shall contain complete information and shall be
substantially in the form prescribed in Code Section 9-11-133. The filing of the complaint
shall not be delayed for the filing of the case filing form. If, after a civil action has been
filed, the court presiding over the civil action decides that the civil case filing form has not
been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil
case filing form or an amended form. In no case shall the failure to accurately complete
the civil case filing form required by this Code section provide a basis to dismiss a civil
action.” (emphasis supplied).
       2
         Neither the dismissal order nor Hawkins’s motion to set aside the dismissal are
contained in the appellate record. In the order denying Hawkins’s motion to set aside the
dismissal, however, the trial court noted that: (1) on October 28, 2013, the clerk of court
entered a notice of non-compliance advising Hawkins that he failed to file a case initiation
form; (2) on November 13, 2013, the trial court entered a notice of requirement to file the
form or explain his noncompliance, advising Hawkins that failure to do so would be
considered an election to have the petition dismissed without prejudice; (3) on December
13, 2013, the trial court entered a final order dismissing the case; and (4) on December 19,
2013, Hawkins filed a case initiation form and a motion to set aside the dismissal, stating
that he complied with OCGA § 9-11-3 (b) and the court’s order and suggesting that the
clerk of court lost the form. The trial court denied the motion to set aside the dismissal,
concluding that Hawkins “failed to meet his burden of persuasion with respect to the
statutory bases [under OCGA § 9-11-60 (d)] for setting aside the default judgment [sic].
In this regard, nothing in the record, save [Hawkins’s] self-serving motion, suggests [he]
complied . . . or attempted to comply . . . with OCGA § 9-11-3 (b) . . . prior to the entry of
the [f]inal [dismissal o]rder. Rather, . . . the record clearly indicates that . . . only after the
[f]inal [o]rder was entered, [Hawkins] complied with OCGA § 9-11-3 (b).”

                                                2
         On January 7, 2014, Hawkins filed a second petition for removal from sex

offender registration requirements, with accompanying supporting exhibits. Without

addressing the merits of the case, the trial court dismissed the petition pursuant to

OCGA § 42-1-19 (b) (3), which provides that “[i]f a petition for release is denied,

another petition for release shall not be filed within a period of two years from the

date of the final order on a previous petition.” Hawkins filed an application for

discretionary appeal of this order, and we granted the application.

         On appeal, we apply a clearly erroneous standard to the trial court’s factual

findings, and a de novo standard to its rulings on questions of law.3

         Hawkins argues that OCGA § 42-1-19 (b) (3) does not apply in this case, and

we agree. OCGA § 42-1-19 (b) (3) bars a person on the sex offender registry from

filing a second petition for release from registration requirements within two years

from a final order on a previous petition, if the first petition for relief was denied.

Hawkins’s first petition was not denied. Instead, the trial court apparently treated the

disposition of that first petition as a voluntary dismissal or, alternatively, a dismissal

for failure to prosecute, neither of which operated as an adjudication on the merits of



    3
        See In re Baucom, 297 Ga. App. 661 (678 SE2d 118) (2009).

                                            3
  the first petition.4 Denial and dismissal are distinct dispositions, and there is nothing

  in the text of OCGA § 42-1-19 (b) (3) remotely suggesting that the bar contained in

  the statute applies to cases in which the first petition was voluntarily dismissed or

  dismissed without prejudice for failure to prosecute, as opposed to cases in which the

  first petition was denied on the merits. Thus, the trial court erred by dismissing

  Hawkins’s second petition for release from sex offender registration requirements,

  and we vacate the trial court’s order and remand the case for adjudication on the

  merits.5

           Judgment vacated and case remanded. Miller and Dillard, JJ., concur.




      4
          See OCGA § 9-11-41 (a) (3) & (b).
      5
        The State implicitly concedes the trial court’s error, requesting that “[i]n light of
the fact that [Hawkins’s] initial case was dismissed rather than denied, [this Court] . . .
remand this case . . . for an order based on the merits rather than any procedural non-
compliance.”

                                              4
