# FILED March 17, 2000 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF T ENNESSEE

AT NASHVILLE MARCH 2000 SESSION 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 f or Expungement )
FOR THE APPELLANT : ALFRED LEE MAULD IN Pro Se 1101 John A. Denie Rd. P.O. Box 34550 FCI-Memphis, TN 38184 FOR THE APPELLEE : PAUL G. SUMMERS Attorney General and Reporter MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney Gener al 252 N. Military Ave. S

te 202, P.O. Box 459 Lawrenceburg 38464-0459

OPINION FILED:
AFFIRMED IN PART ; REVERSED IN PART; REMANDED JOE G. RILEY, JUDGE1 Defendant makes numerous other allegations and seeks vari ous forms of relief. However, the onl

y issue relevant t

o this appeal is the

request for expu

ngement. 2 OPINION
De fendant appeals as of right from the Maury County Circuit Co urt' s dismissal of his motion for expungem ent. 1 Upon our examination of the record presented for review, we hold the trial court properl y denied relief as to all

convicted offenses but erred in denying relief as to the dismis sed cases. We remand to the trial court for entry of an order in accordance w ith this opinion.
BACKGROUND
On September 8, 1992, defendant’s cas e no. 7165 w as retired from the docket. The following day defendant ent ered n olo contendere pleas in case nos. 7306, 7307 and 7308, pleading to three sales of a controlled

substance. On March 21, 1997, the trial court grant ed the state's motion to nolle prosequi case nos. 9110- 9114.
On May 18, 1999, defendant filed a r ambling, confusing, inar tfully dr afted, pro se petition to expunge the records in the above cases. On July 26, 1999, the trial court en t ered an order indicating that the petition was “overr uled and dismissed.” This appeal followed.
ANALYSIS
Pursuant to Tenn. Code Ann. § 4 0-3 2-101(a), the defendant is not entitled to expunge case nos. 7306, 7307 and 7308, i n which he entered a plea of nolo contendere . The trial cou rt prope rly dismissed the request for expungement in these cases since convicti on offenses are not subject to ex pungement.3 The retired case no. 7165 present s a unique issue. When a trial court retir es a case from the

do cket, the case is not dism issed and may be subject to f urther 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 tri al court properly denied expung ement in this retired case. Upo n remand, should the case be dismissed, the trial court could then order expungement.
The state concedes petitioner is entitled to expungement i n case nos. 9110- 9114. The statute provides that “upon pet ition in the court where a nolle prosequi is entered, all public records shall be expunged.” Tenn. C ode Ann. § 40-32- 101(a)(3); State v. Liddle , 929 S.W.2d 415 (Tenn. Cri m. App. 1996). A defendant is entitled to expungement in suc h 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 stat e c ontends petitioner’s request to expunge the “criminal history record” maintained by the “Departm ent 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 lawenforcement records under Tenn. Code Ann. § 40-32-101(b). See State v. Ne il Edward Bridges , C.C.A. No. 01C01-9508-CC00271, Grundy County (Tenn. C rim. 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 historie s , investigative reports or intelligence information,” held by the Department of Correct ion or any other law enforc ement agency, that “are not open for inspection by member s of the public” are exem pt.4

Tenn. Code Ann. § 40-32-101(b).
CONCLUSION
The judgment of the trial court denying expungement is AFFIRMED as t o case nos. 7165, 73 06, 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, JUD GE

____________________________ WILLIAM B. ACREE,

JR., SPECIAL JUDGE