Judges_retired judge_unfulfilled expungement order_authority of current judge
A superior court judge had jurisdiction to rule upon the State's motion to reconsider an
expungement order that was originally issued by a now retired judge. N.C.G.S. § 1A-1, Rule 63.
Attorney General Roy Cooper, by Assistant Attorney General
Ashby T. Ray, for the State.
No brief filed for respondent-appellee.
CALABRIA, Judge.
The State appeals Gerald Walker Kearney, Jr.'s (“respondent”)
15 March 1994 expungement order and 7 May 2004 order denying
reconsideration of the order for expungement.
(See footnote 1)
We reverse in part,
affirm in part, and remand.
Respondent was charged with assault and battery and
misdemeanor assault inflicting serious injury on 18 March 1990. On
May 18, 1990, defendant was convicted of misdemeanor assault
inflicting serious injury and the charge of assault and battery was
dismissed. Judge William H. Freeman (“Judge Freeman”) signed an order to
expunge both offenses, the assault and battery as well as the
assault inflicting serious bodily injury conviction. This order
directed the State Bureau of Investigation (“SBI”) to expunge from
SBI records all references to the charges and arrest in the instant
case. On 16 October 1995 the Assistant Director of the SBI sent a
letter to the trial court seeking a clarification of the 15 March
1994 order since it was not in full compliance with N.C. Gen. Stat.
§ 15A-146 (2003). The letter explained that although respondent
qualified for an expungement of the assault and battery charge, he
did not qualify for expungement of the assault inflicting serious
bodily injury charge. Nearly ten years passed from the date of the
SBI letter with no response from the trial court and no action
taken on the 15 March 1994 expungement order by the trial court.
On 16 March 2004 the State filed a motion to reconsider the
order for expungement before Forsyth Superior Court Judge William
Z. Wood, Jr. (“Judge Wood”) because the author of the original
expungement order, Judge Freeman, had retired.
(See footnote 2)
Judge Wood denied
the State's motion, finding the court had no jurisdiction over the
matter. The State filed a petition for writ of certiorari in this
Court to review Judge Wood's order as well as Judge Freeman's order
since jurisdiction for entry of an amended order of expungement
“lies with the Superior Court.” This Court granted review of both
orders. The State argues that both charges should not have been
expunged. Criminal charges may be expunged pursuant to N.C. Gen.
Stat. § 15A-146 only when that charge has been dismissed or the
individual charged was found not guilty. See N.C. Gen. Stat. §
15A-146(a) (2003) (explaining that “[i]f any person is charged with
a crime, either a misdemeanor or a felony . . . and the charge is
dismissed, or a finding of not guilty or not responsible is
entered, that person may apply to the court . . . for an order to
expunge from all official records any entries relating to his
apprehension or trial.”) (emphasis added). Since respondent was
convicted of assault inflicting serious bodily injury at the same
time his assault and battery charge was dismissed, he was eligible
for expungement under § 15A-146 only for the assault and battery
charge, and the original order should be amended to reflect an
expungement only for the assault and battery.
Judge Wood, in denying the State's motion to reconsider the
order for expungement, stated that the Superior Court lacked
jurisdiction. However, N.C. R. Civ. P. 63, in pertinent part,
states:
[i]f by reason of . . . retirement . . . a
judge before whom an action has been tried or
a hearing has been held is unable to perform
the duties to be performed . . . after a . . .
hearing is otherwise concluded, then those
duties... may be performed: (1) In actions in
the superior court by the judge senior in
point of continuous service on the superior
court regularly holding the courts of the
district.
N.C. Gen. Stat. § 1A-1, Rule 63 (2003).Therefore, notwithstanding Judge Freeman's absence from the bench
due to retirement, Judge Wood erred in denying the motion to
reconsider Judge Freeman's expungement order for lack of
jurisdiction because he is statutorily authorized to address the
motion to reconsider the order for expungement and, in accordance
with the dictates of N.C. Gen. Stat. § 15A-146(a), to amend Judge
Freeman's 15 March 1994 order. We affirm that part of Judge
Freeman's 15 March 1994 order granting expungement for the assault
and battery charge and reverse that part of the order granting
expungement for the assault inflicting serious bodily injury
conviction with instructions for Judge Wood to amend accordingly.
Affirmed in part, reversed in part and remanded.
Judges ELMORE and GEER concur.
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