Payne v. State

ON PETITION FOR REHEARING

The State argues that we erred by remanding to the trial court with instructions to enter an order of expunge*219ment. The State is correct. In our decision we held that the trial court failed to make sufficient findings to deny expungement under subsection (f) of the statute because the trial court’s findings did not reject all of the factors raised by Payne under subsection (a). Accordingly, we reversed the trial court’s decision. We then remanded with instructions to enter an order of expungement. However, these instructions were improper because by ordering expungement we stepped into the shoes of the trial judge and implicitly and improperly made findings as to the remaining factors raised by Payne under subsection (a). Payne carried the burden of proof on these factors and since we held the evidence was conflicting, we should have remanded to the trial court with instructions to make more complete findings. We note, however, that the trial court’s findings must address only those factors in subsection (a) which Payne presented at the hearing. In the present case Payne argued the charges were dropped because no offense was committed and because no probable cause existed. The trial court’s finding addressed only the second of these factors. Therefore, we remand to the trial court with instructions to enter findings on the remaining factor Payne raised under subsection (a) based on the evidence of record.

Instructions on remand modified.

NEAL, J. and MILLER, J., concur.