Criminal history records. Wilkinson Superior Court. Before Judge Brown.
Ashley L. Deadwyler, for appellant.
Fredric D. Bright, District Attorney, Daniel B. Cochran, Assistant District Attorney, for appellees.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
Indicted on numerous counts of sexual offenses, Troy Lee Gibbs was brought to trial in the Superior Court of Wilkinson County, which proceeding ended by mistrial after the jury failed to reach a verdict. At his second trial, the jury found Gibbs guilty of nine counts of child molestation, two counts of enticing a child for indecent purposes, and two counts of solicitation of sodomy; Gibbs was sentenced to imprisonment. But Gibbs's convictions were reversed by this court, and after the case was remitted to the superior court in October 2007, an order of nolle prosequi was entered. Thereafter, in February 2014, Gibbs petitioned the Superior Court of Wilkinson County, pursuant to Georgia's record-restriction statute, OCGA § 35-3-37, to restrict access to his criminal history record information for the underlying [330 Ga.App. 852] offenses, and to grant him attorney fees
incurred in pursuing said record restriction. In his petition, Gibbs named as respondents the Wilkinson County District Attorney, Fred Bright, as well as the Wilkinson County Sheriff's Office. The superior court conducted a hearing, then denied Gibbs's petition. Gibbs appeals. For reasons that follow, we affirm.
At the hearing, the state argued that Gibbs's petition was governed by paragraph (j) (2) of OCGA § 35-3-37, which states:
When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final, such individual may petition the superior court in the county where the conviction occurred to restrict access to criminal history record information for such offense... . If a hearing is requested, ... [t]he court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to  the reason the judgment was reversed or vacated,  the reason the prosecuting attorney has not retried the case, and  the public's interest in the criminal history record information being publicly available.
As to the first of these three factors, the state cited that the judgment was reversed because Gibbs's trial counsel had rendered ineffective assistance. Regarding the second such factor, the state proffered that the reason it had not again tried the case was that Gibbs had already served three years in prison after having two one-week-long trials. The court then turned to the assistant district [330 Ga.App. 853] attorney who had represented the state at Gibbs's trials, and asked for " [a]nything on the second [factor]?" She responded:
[W]hen the case came back [from the Court of Appeals], because I had been the one that had been prosecuting it in both cases, there was some question as to, you know, was the State going to retry the case. We got in touch with the victim who had moved and married. Didn't want to come back and do this for a third time. Very frustrated with the system. And so I communicated that to Mr. Bright [the district attorney]. And he put that, the reason, that he did on there. But it was not a recanted, state this on the record, she did not recant. She did not say it didn't happen. She didn't say, you know oh well, you know, never mind. She just said: I don't want to go through this a third time. And, additionally, our similar transaction ...