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Unofficial Opinion 98-11

Unofficial Opinion 98-11

September 4, 1998
To: 

City Solicitor

Re: 

The City of Atlanta Solicitors office does not have the authority under O.C.G.A. § 35-3-37(d) to approve the expungement by an original agency of a criminal arrest record involving a felony or misdemeanor state offense which is dismissed in municipal court and for which no indictment or accusation has been drawn.

You have requested my unofficial opinion as to whether the City of Atlanta Solicitor’s office has the authority under O.C.G.A. § 35-3-37(d) to approve the expungement by an original agency of a criminal arrest record involving a felony or misdemeanor state offense which is dismissed in municipal court and for which no indictment or accusation has been drawn. I have reviewed the opinion of the City of Atlanta Department of Law, and for the reasons stated below, I concur with the conclusion of the City Attorney that the City of Atlanta Solicitor’s office does not have the authority under O.C.G.A. § 35-3-37(d) to approve the expungement of such a criminal arrest record.

The authority of a prosecuting attorney to approve the expungement of a criminal arrest record is set forth at O.C.G.A. § 35-3-37(d). Under that Code Section, a request for the expungement of an arrest record should be directed to the original agency, which should then provide a copy of the request to the proper prosecuting attorney. Generally, an individual has the right to have his or her record of an arrest expunged if the proper prosecuting attorney determines that the individual requesting expungement has no other pending criminal charges; has not previously been convicted of the same or a similar offense within the last five years, excluding any period of incarceration; and was either arrested for an offense under the laws of this state and released by the arresting agency without the offense being referred to the prosecuting attorney, or, after the offense was referred to the proper prosecuting attorney, it was dismissed without an indictment being sought or an accusation filed. O.C.G.A. § 35-3-37(d).

There is no question that, under the statute, a request for expungement should be forwarded from the original agency to the proper prosecuting attorney. Although it may be assumed that, pursuant to O.C.G.A. § 15-18-14(a)(5)(G), an attorney employed by the City of Atlanta Solicitor’s office may be a prosecuting attorney, O.C.G.A. § 35-3-37(d) calls for a request for expungement to be evaluated by the proper prosecuting attorney. The term “proper” means “marked by suitability, rightness, or appropriateness.” Webster’s New Collegiate Dictionary 916 (1980). As “proper” is not a word of art or a word connected with a particular trade or subject matter, the ordinary significance of the word must be applied. See O.C.G.A. § 1-3-1(b).

In determining whether the City of Atlanta Solicitor’s office or some other similarly situated prosecuting office is the proper prosecuting attorney for the purposes of O.C.G.A. § 35-3-37(d), it is significant that the jurisdiction of the Solicitor’s office regarding felonies and misdemeanor state offenses extends only to the consideration of probable cause at a preliminary hearing. Even if a case is brought to a preliminary hearing by the Solicitor’s office and dismissed by the municipal court for lack of probable cause, an indictment could still be sought or accusation drawn by the prosecutor of the trial court of competent jurisdiction. See Boyce v. State, 184 Ga. App. 578 (1987), aff’d 258 Ga. 171 (1988) (dismissal of charges based on lack of probable cause does not bar the subsequent indictment and trial of a defendant on the same charges); Wells v. Stynchcombe, 231 Ga. 199 (1973) (discharge of offense by a commitment court whose jurisdiction is limited to determining probable cause does not bar a subsequent indictment and trial for the offense).

Because the prosecuting attorney of the trial court could still prosecute an offense by seeking an indictment or filing an accusation despite a dismissal by the commitment court, it is my interpretation of O.C.G.A. § 35-3-37(d) that the proper prosecuting attorney to evaluate a request for the expungement of a criminal arrest record involving a felony or misdemeanor state offense is the prosecuting attorney of the trial court of competent jurisdiction. For felony and misdemeanor state offenses, the City of Atlanta Solicitor’s office is not the prosecuting office of the trial court of competent jurisdiction. Therefore, it is my unofficial opinion that the City of Atlanta Solicitor’s office does not have the authority under O.C.G.A. § 35-3-37(d) to approve the expungement by an original agency of a criminal arrest record involving a felony or misdemeanor state offense which is dismissed in municipal court and for which no indictment or accusation has been drawn.

Prepared by:

 

KYLE A. PEARSON
Assistant Attorney General