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Hawkins v. State

Court of Appeals of Georgia, Second Division

January 23, 2015

HAWKINS
v.
THE STATE

Sex offender registry. Fulton Superior Court. Before Judge Glanville.

Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.

OPINION

Page 524

Doyle, Presiding Judge.

Following the grant of his discretionary application, William Hawkins appeals from the trial court's order denying his petition for removal from sex offender registration requirements. For the reasons set forth below, we vacate the trial court's order and remand the case.

The record shows that in September 1991, when Hawkins was 16 years old, he entered a nolo contendere plea to attempted sexual battery in Florida and was sentenced to two years of " community control" followed by ten years of probation. In October 2013, Hawkins filed a petition for removal from sex offender registration requirements. The trial court dismissed the petition for failure to file a civil initiation form pursuant to OCGA § 9-11-3 (b),[1] and on December 31, 2013, it denied Hawkins's subsequent motion to set aside the dismissal order.[2]

On January 7, 2014, Hawkins filed a second petition for removal from sex offender registration requirements, with accompanying supporting exhibits. Without addressing the merits of the case, the trial court dismissed the petition pursuant to OCGA § 42-1-19 (b) (3), [330 Ga.App. 548] which provides that " [i]f a petition for release is denied, another petition for release shall not be filed within a period of

Page 525

two years from the date of the final order on a previous petition." Hawkins filed an application for discretionary appeal of this order, and we granted the application.

On appeal, we apply a clearly erroneous standard to the trial court's factual findings, and a de novo standard to its rulings on questions of law.[3]

Hawkins argues that OCGA § 42-1-19 (b) (3) does not apply in this case, and we agree. OCGA § 42-1-19 (b) (3) bars a person on the sex offender registry from filing a second petition for release from registration requirements within two years from a final order on a previous petition, if the first petition for relief was denied. Hawkins's first petition was not denied. Instead, the trial court apparently treated the disposition of that first petition as a voluntary dismissal or, alternatively, a dismissal for failure to prosecute, neither of which operated as an adjudication on the merits of the first petition.[4] Denial and dismissal are distinct dispositions, and there is nothing in the text of OCGA § 42-1-19 (b) (3) remotely suggesting that the bar contained in the statute applies to cases in which the first petition was voluntarily dismissed or dismissed without prejudice for failure to prosecute, as opposed to cases in which the first petition was denied on the merits. Thus, the trial court erred by dismissing Hawkins's second petition for release from sex offender registration requirements, and we vacate the trial court's order and remand the case for adjudication on the merits.[5]

Judgment vacated and case remanded.

Miller and Dillard, JJ., concur.


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