Opinion
No. ED90768
September 23, 2008
Appeal from the Circuit Court of Jefferson County Cause No. 07JE-CC01134 Honorable Gary P. Kramer.
Christopher R. Fehr, for Appellant.
Bobbie G. Smith, for Respondent.
OPINION
The State of Missouri (hereinafter, "the State") appeals from the trial court's judgment granting Bobbie Gene Smith's (hereinafter, "Smith") petition for the expungement of his arrest records pursuant to Section 610.123 RSMo (2000). The State argues the trial court erred in not having a hearing on the record. We affirm.
All statutory references are to RSMo (2000) unless otherwise indicated.
The facts are undisputed. Smith filed his petition for the expungement of his arrest records on October 23, 2007. The State subsequently filed its answer consenting to the expungement of Smith's arrest records and alleging Smith had no criminal record. The trial court held a hearing on December 3, 2007, but the hearing was not recorded and no transcript is available. The trial court entered judgment in Smith's favor and ordered his arrest records expunged. The State appeals.
Smith did not favor this Court with a brief on appeal. There is no penalty for a respondent failing to file a brief. A respondent's failure to file a brief, however, requires this Court to adjudicate an appellant's claim of error without benefit of whatever argument a respondent might have presented.
In its sole point on appeal, the State alleges the trial court erred in failing to have a hearing on the record. The State relies upon this Court's decision in Butler v. Missouri State Criminal Records Repository, 241 S.W.3d 429 (Mo.App.E.D. 2007) to support its claim of error.
In Butler, the State appealed the trial court's judgment granting the expungement of Butler's arrest records. Id. at 430. The State argued on appeal that Butler failed to establish his right to expungement pursuant to Section 610.122. Id. This Court held that it could not review the State's challenge to the sufficiency of the evidence to support the judgment in the absence of a record of the hearing because it was "impossible for this Court to determine what evidence was before the court and this Court may not speculate on the evidentiary basis for the trial court's decision." Id. at 430-31. We reversed and remanded the proceedings for a hearing on the record. Id. at 431.
In the case at bar, the State's point on appeal merely challenges the trial court's failure to have a hearing on the record. The State fails in its point relied on to state what alleged error the trial court committed below or how the State was prejudiced by the trial court's ruling. While Section 610.123.3 mandates that a hearing be held on the matter, nothing in this Section nor our holding in Butler require a hearing be held on the record. In Butler, we were restrained from reviewing the State's argument about the sufficiency of the evidence Butler presented in the absence of a record. Here, the State makes no such challenge to the sufficiency of the evidence below; thus, Butler is inapplicable here. While the better course of practice would be to have these hearings on the record in order to preserve issues for appeal, the trial court is not required by statute to do so. Point denied.
The trial court's judgment is affirmed.
Roy L. Richter, P.J., and Lawrence E. Mooney, J., concur
OPINION SUMMARY
The State of Missouri (hereinafter, "the State") appeals from the trial court's judgment granting Bobbie Gene Smith's petition for the expungement of his arrest records pursuant to Section 610.123 RSMo (2000). The State argues the trial court erred in not having a hearing on the record.
AFFIRMED.
Division II Holds: While Section 610.123.3 RSMo (2000) mandates that a hearing be held after a person files a petition for expungement of arrest records, there is no requirement that the trial court have that hearing on the record.
ROY L. RICHTER, P.J., LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J., concurring.