Higgins v. State Of Okla., 106

Citation2010 OK CIV APP 29,231 P.3d 757
Decision Date22 February 2010
Docket NumberNo. 106,529.Released for Publication by Order of the Court,Division No. 3.,106
PartiesAlvis C. HIGGINS, Plaintiff/Appellant,v.STATE of Oklahoma, Defendant/Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

231 P.3d 757
2010 OK CIV APP 29

Alvis C. HIGGINS, Plaintiff/Appellant,
v.
STATE of Oklahoma, Defendant/Appellee.

No. 106,529.Released for Publication by Order of the Court

of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma,
Division No. 3.

Jan. 8, 2010.
Rehearing Denied Feb. 22, 2010.


231 P.3d 758
Appeal from the District Court of Tulsa County, Oklahoma; Honorable Thomas Thornbrugh, Judge.
APPEAL DISMISSED.
Alvis C. Higgins, Lexington, OK, pro se.

Matney M. Ellis, Assistant District Attorney, Tulsa, OK, for Appellee, State of Oklahoma,

Jimmy Bunn, Jr., Oklahoma City, OK, for Oklahoma State Bureau of Investigation.

LARRY JOPLIN, Judge.

¶ 1 Plaintiff/Appellant Alvin C. Higgins (Higgins) seeks review of the trial court's order denying his motion to expunge criminal records. In this appeal, Higgins asserts the trial court erred in denying his Petition for Writ of Habeas Corpus Ad Testificandum, and denying his motion to expunge in his absence, despite his entitlement to relief under 22 O.S. §§ 18 and 19.

¶ 2 Higgins was arrested and charged in two cases. In case CF-2000-5424, filed October 3, 2000, State charged him with three counts of rape in the first degree, two counts of lewd molestation, and one count of sexual battery. In case CF-2000-6050, filed November 3, 2000, State charged him with three counts of lewd molestation.

¶ 3 Upon trial in July 2002, a jury acquitted Higgins on the three counts of rape, but convicted him of two counts of lewd molestation and one count of sexual battery, and he was sentenced to forty-five years incarceration. On January 24, 2003, the trial court dismissed all counts of the second case on “State's motion to dismiss cases[,] costs to state[,] due to insufficient evidence.”

¶ 4 In June 2007, Higgins-then incarcerated at Joseph Harp Correctional Center (JHCC)-filed his motion to expunge the records of the three counts of rape (for which he was acquitted), and the three counts of lewd molestation (which State dismissed). In his motion, Higgins requested an order for him to appear at hearing, and he agreed to pay the costs of his transportation.

¶ 5 On May 7, 2008, Higgins filed his Petition for Writ of Habeas Corpus Ad Testificandum and Motion to Set for Hearing. By letter dated May 21, and addressed to Higgins at JHCC, Judge McAllister advised Higgins:

Please comply with 22 O.S. § 19 by notifying the arresting agency and the Oklahoma State Bureau of Investigation along with the District Attorney's Office of the filing of your petition and of the Court date of August 19, 2008. All agencies must receive a minimum 30 days notice.
Your attendance is not required[.][Y]ou should prepare a proposed order and circulate it for signatures and then forward it to the Court.

¶ 6 The District Attorney for Tulsa County and the Oklahoma State Bureau of Investigation entered appearances and objected to expungement. Higgins objected to denial of his requests to appear at hearing, and filed a reply to the objections to expungement.

¶ 7 By minute order dated August 19, the trial court (by Judge Thornbrugh) denied Higgins's motion to expunge. Higgins then filed a motion to clarify, challenging the trial court's failure to expressly deny his requests to appear.

¶ 8 On August 26, 2008, Higgins filed a Notice of Intent to Appeal in the trial court and certified the mailing of the notice to the Tulsa Police Department, the Tulsa County District Attorney and the OSBI. On September 2, 2008, Higgins filed his Designation of Record in the trial court. On November 18, 2008, Higgins filed his “Appeal from District Court Denial of Motion to Expunge Record

231 P.3d 759
and Brief in Support” with the Supreme Court Clerk to commence the instant proceeding. On December 15, 2008, the Tulsa County District Attorney filed its answer brief in this appeal.

¶ 9 In April 2009, the trial court filed its “Memorialization of the Court's Order of August 19,” and Higgins filed an amended Petition in Error. On June 17, 2009, the Supreme Court assigned the case to the Court of Civil Appeals.

¶ 10 On July 8, 2009, the OSBI entered a special appearance and motion to dismiss appeal, asserting Higgins's fatal failure to name or join OSBI as an appellate necessary party and to notify OSBI of the commencement of this appeal. Higgins responded, arguing the record showed that OSBI received notice of and participated in the trial court proceedings, and, he mailed a copy of a Notice of Intent to Appeal, filed in the trial court, to the OSBI.

I. Expungement under 22 O.S. §§ 18 and 19

¶ 11 Section 18(A) of title 22, O.S.2001, authorizes the filing of a motion or...

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3 cases
  • Crockett v. Cent. Okla. Transp. & Parking Auth., 106966.Released for Publication by Order of the Court
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 22 Marzo 2010
    ... ... letter requested that Insurer notify counsel “if this does not accurately state our conversation.” Insurer did not respond. On February 8, 2008, Crockett filed suit against COTPA. Her petition stated that “a claim ... ...
  • Points v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 14 Febrero 2014
    ...the proper review standard, but that the decision whether to expunge a record is left to the trial court's discretion, citing Higgins v. State, 2010 OK CIV APP 29, ¶ 12, 231 P.3d 757. Title 22 O.S.2011 19(C) provides that where the statutory grounds for expungement are shown, the trial cour......
  • Points v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 14 Marzo 2014
    ...the proper review standard, but that the decision whether to expunge a record is left to the trial court's discretion, citing Higgins v. State, 2010 OK CIV APP 29, ¶ 12, 231 P.3d 757. Title 22 O.S.2011 §19(C) provides that where the statutory grounds for expungement are shown, the trial cou......

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