Summary
reversing order denying expunction because the state "did not present any evidence at the hearing to refute appellant's sufficient allegations and proof but merely objected to the expungement"
Summary of this case from VFD v. StateOpinion
No. 77-2295.
October 11, 1978. Rehearing Denied November 15, 1978.
Appeal from the Circuit Court, Orange County, W. Rogers Turner, J.
William R. Sharpe, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant sought to expunge the record of his arrest and conviction of manslaughter under Florida Rules of Criminal Procedure 3.692. He alleged and proved he was tried and convicted of manslaughter and after a successful appeal of his conviction the State declined to retry him and entered its nolle prosequi. The statute of limitations for his retrial has run.
At the hearing on his motion to expunge the appellant presented his affidavit that he had never been convicted of a criminal offense or a municipal ordinance violation and was released of the "instant charges" without having been adjudicated guilty, all in accordance with Section 901.33, Florida Statutes. The State neither traversed nor demurred to the motion of the appellant and did not present any evidence at the hearing to refute appellant's sufficient allegations and proof but merely objected to the expungement.
The trial court refused to order the expungement of the record for the reason he read in the pre-sentence report, which was obtained after the original conviction, that appellant had been convicted of some traffic violations. Had these convictions been properly pleaded and proved by the state then they would have constituted a sufficient bar to the appellant's requested expungement. They were not pleaded and were not properly proved. They were not properly proved because the records of the conviction were not furnished but merely a hearsay statement of a non-attending witness with no right to cross examination afforded. Of course had these convictions been properly pleaded and proved and had the affidavit of the appellant been shown to be perjurious a much more serious result might have occurred.
The order denying the motion for expungement is reversed and this matter remanded for entry of an order in accordance herewith.
REVERSED AND REMANDED.
BASKIN, NATALIE, Associate Judge, concurs.
ANSTEAD, J., dissents with opinion.
The parties are here on a stipulated statement of facts. No court reporter was in attendance at the hearing on the motion to expunge. However, at the hearing the trial judge questioned the accuracy of the appellant's affidavit on the basis of the trial court's recollection of the contents of a prior presentence investigation. The trial judge indicated that he would check the court file before ruling. No objection was made to this procedure. Upon checking the court file the trial judge found a record in the presentence investigation report of numerous prior traffic offenses contrary to the appellant's sworn assertions in his affidavit. The trial court then denied the motion to expunge. I can find no error on the part of the trial court who conscientiously, and without objection, checked and determined that the appellant's traffic record was contrary to appellant's sworn representations.