Expungement Proper on Dismissed Counts of Indictment Even When There Is A Conviction on Other Counts

STATE OF TENNESSEE v. AMADO RUBIO TAVER  


In this Davidson County case Tavara plead guilty to DUI and the state dismissed, nolle prosequi, the charge of aggravated assault before Judge Dozier. After a year Tavara filed a motion to to have the dismissed count expunged. The trial court denied the motion stating that since there was a conviction in one count of the indictment another count could not be dismissed. The defendant took a writ of certiorari to the Court of Criminal Appeals.

The pertinent statute is: Tennessee Code Annotated section 40-32-101(a). All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if the charge has been dismissed.

But later the statute says: A person shall not be entitled to the expunction of such person’s records in a particular case if the person is convicted of any offense or charge,including a lesser included offense or charge.

The court held that the trial court erred by denying Tavera’s motion to expunge the charge of aggravated assault.  A defendant may have a charge dismissed and expunged from an indictment where a guilty plea has been entered on another count.