          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997              FILED
                                                         August 22, 1997

                                                     Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

DELMER RAY HALL,                )
                                )   No. 01C01-9608-CR-00353
      Appellant                 )
                                )   WILLIAMSON COUNTY
vs.                             )
                                )   Hon. HENRY DENMARK BELL, Judge
STATE OF TENNESSEE,             )
                                )   (Expunction of Record)
      Appellee                  )



For the Appellant:                  For the Appellee:

DELMER RAY HALL, Pro Se             CHARLES W. BURSON
Riverbend Max. Security Inst.       Attorney General and Reporter
Unit 6-A-114
7475 Cockrill Bend Ind. Rd.         JANIS L. TURNER
Nashville, TN 37209-1010            Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493


                                    JOSEPH D. BAUGH
                                    District Attorney General

                                    JOHN BARRINGER
                                    Assistant Attorney General
                                    Post Office Box 937
                                    Franklin, TN 37065-0937




OPINION FILED:

REVERSED AND REMANDED



David G. Hayes
Judge
                                      OPINION



       This is a pro se appeal in which the appellant, Delmer Ray Hall, appeals

the Williamson County Circuit Court's dismissal of his petition to expunge public

records. The trial court dismissed the appellant's petition finding the petition

barred by the ten year statute of limitations, Tenn. Code Ann. § 28-3-110 (1980)

(limitations of actions other than real). In this Rule 4(a) appeal, the appellant

contends that the language of Tenn. Code Ann. § 40-32-101 (1990), regarding

the expunction of dismissed misdemeanor charges, is mandatory and, therefore,

the trial court improperly denied his petition.



       After review, we reverse and remand this case to the trial court.



       The appellant's petition alleges that, on November 14, 1980, he was

arrested on two charges of assault and battery in Williamson County. He further

avers that these charges were dismissed on December 1, 1980, by the General

Sessions Court. He was subsequently convicted for assault with intent to

commit first degree murder and is currently serving a thirty-three year sentence

in the Department of Correction.



        On July 24, 1995, the appellant filed a pro se petition in the Williamson

County General Sessions Court for expunction of records relating to the

dismissal of the assault and battery charges, as well as expunction of all records

relating to these charges in the possession of various law enforcement agencies.

The petition was denied. The appellant timely filed a notice of appeal to the

Circuit Court. At the scheduled hearing on October 23, 1995, the court

dismissed the petition, adopting the State's argument that the petition was




                                          2
barred, on its face, by the statute of limitations. 1 The appellant now appeals the

trial court's ruling.



         Initially, we note that neither party, in their respective briefs to this court,

recognizes or responds to the Circuit Court's finding that Tenn. Code Ann. § 28-

3-110 bars the appellant's petition. Rather, the issues presented and argued by

the appellant before this court address the expunction of the records of the

dismissed charges and records held by law enforcement agencies, neither of

which were addressed by the trial court.2 In order to prevent additional delay and

further needless and protracted litigation on this relatively uncomplicated issue,

we elect to proceed on the merits. Tenn. R. App. P. 2; Tenn. R. App. P. 13(b).



         The relevant statute, Tenn. Code Ann. § 40-32-101(a), provides, in part:

         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 the grand jury, or a verdict of not guilty
         returned by a jury or a conviction which has by appeal been
         reversed, shall, upon petition by that person to the court having
         jurisdiction in such previous action, be removed and destroyed
         without cost to such person . . . .

(Emphasis added). By the plain language of the provision, the trial court is

without the discretion to deny the petition. State v. McCary, 815 S.W.2d 220,

222 (Tenn. Crim. App. 1991); see also State v. Liddle, 929 S.W.2d 415 (Tenn.

Crim. App. 1996); Eslick v. State, 924 S.W.2d 559 (Tenn. Crim. App. 1996).



         The ten year statute of limitation for actions other than real, Tenn. Code

Ann. § 28-3-110, has no application to the case before us. Expunction of

records does not constitute a cause of action; it is a ministerial duty of the court.

Moreover, Tenn. Code Ann. § 40-32-103 (1990) expressly provides that "[t]he



         1
         No proo f was introduc ed a t the trial level to sup port the allegations in the petition, i.e.,
that the misdemeanor charges were, in fact, dismissed.

         2
        The State, in its brief, only responds to the issue of the expunction of records held by law
enforcement agencies.

                                                      3
provisions of [Chapter 32, Destruction of Records Upon Dismissal or Acquittal,]

shall apply to those persons charged with a misdemeanor or a felony prior to

July 1, 1973. . . ."3 The plain language of the chapter, therefore, precludes any

tolling of the time for the filing of a petition for expunction. Accordingly, Tenn.

Code Ann. § 28-3-110 cannot operate as a bar to a petition for expunction.



       Because no statute of limitations exists to bar a petition for expunction,

the judgment of the trial court must be vacated. However, for instructive

purposes upon remand, previous decisions of this court have held that records in

the possession of law enforcement agencies are not expungeable. See Tenn.

Code Ann. § 40-32-101(b); see also State v. Bridges, No. 01C01-9508-CC-

00271 (Tenn. Crim. App. at Nashville, July 26, 1996) (citing State v. Norris, 684

S.W.2d 650, 653 (Tenn. Crim. App. 1984); State v. Doe, No. 155 (Tenn. Crim.

App. at Knoxville, Aug. 6, 1986)). We, therefore, reverse the judgment of the

trial court in dismissing the petition and remand this matter to the trial court for

expunction according to the statute and consistent with this opinion.




                                        ____________________________________
                                        DAVID G. HAYES, Judge


CONCUR:



__________________________________
PAUL G. SUMMERS, Judge



__________________________________
JERRY L. SMITH, Judge




       3
       July 1, 1973, was the effective enactment date of this chapter. This section remains
unamended.

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