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State v. Delaby

Court of Criminal Appeals of Tennessee, Knoxville

April 2, 2015

STATE OF TENNESSEE
v.
RYAN M. DELABY

Session January 22, 2015.

Appeal from the Criminal Court for Bradley County No. M-06-524 Carroll L. Ross, Judge.

G. Scott Kanavos, Cleveland, Tennessee, for the appellant, Ryan M. Delaby.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Stephen Crump, District Attorney General; and Stephen Hatchett, Assistant District Attorney General, for the appellee, State of Tennessee.

James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE.

On November 6, 2006, the petitioner pleaded guilty to one count of assault, one count of domestic assault, and one count of vandalism of property valued at more than $500 but less than $1, 000 in exchange for a total effective sentence of two years to be served on probation. On March 17, 2008, a probation violation warrant issued alleging that the petitioner had violated the terms of his probation, and the trial court revoked the petitioner's probation but returned him to probation. On June 2, 2008, a second violation warrant issued, and the trial court again revoked the defendant's probation but this time ordered the defendant to serve his sentence in confinement. The defendant was placed on determinate release on November 17, 2008, see T.C.A. § 40-35-501(a)(3) (2006) ("Notwithstanding any other provision of law, inmates with felony sentences of two (2) years or less shall have the remainder of their original sentence suspended upon reaching their release eligibility date."), which order of release indicates a probation expiration date of January 29, 2010.

At some point thereafter, the petitioner filed a written petition asking the trial court to expunge the records of his vandalism conviction under the terms of Tennessee Code Annotated section 40-32-101(g). No copy of that petition appears in the record. An agreed order was filed on August 26, 2013, granting the petition to expunge. On November 7, 2013, the trial court entered an order noting that the agreed order might be contrary to the terms of Code section 40-32-101(a)(1)(E) and holding the August 26, 2013 order in abeyance pending further proceedings. On March 24, 2014, the trial court entered an order denying the petition to expunge on the ground that the petitioner was not eligible for expunction[1] because he had been convicted of offenses other than the one for which he sought expunction.

The petitioner then filed in this court a petition for writ of certiorari followed by an untimely notice of appeal. We waived the timely filing of the notice of appeal, and this appeal is now properly before this court.

In this appeal, the defendant contends that the trial court erred by denying his petition to expunge the records of his vandalism conviction. He acknowledges having been convicted of three offenses in 2006 but argues that because those convictions were for offenses that occurred within the same 24-hour period, he was not rendered ineligible for expunction by virtue of the multiple convictions. The State asserts that the defendant is ineligible for expunction because his conviction of vandalism was not his "sole" conviction and because of the character of the remaining convictions.

At the time the petitioner filed his petition, Tennessee Code Annotated section 40-32-101 provided, in pertinent part, as follows:

(g)(1) For purpose of this subsection (g), "eligible petitioner" means:
(A) A person who was convicted of one of the following Class E felonies and sentenced to imprisonment for a term of three (3) years or less for an offense ...

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