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What if your case situation does not exactly the Expunction Statute criteria?

The Wisconsin expunction statute was amended in 2009, to increase the age limit for eligibility to twenty-five and, for the first time since 1976, permit expunction for some low class felonies. Thus, some people whose conviction occurred prior to July 1, 2009 but are under the age of 25, but were older than 21 at the time of their offense, are not clearly entitled to expungement. Does this mean that they are out of luck? Maybe not.

There is nothing in the plain language of the new § 973.015 limiting its application to only offenses committed after the effective date of the statute. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, P45, 271 Wis. 2d 633, 681 N.W.2d 110 ("statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'"). Therefore, following the effective date of the amendment to the statute, § 973.015 applies to all offenses that otherwise fit the statutory criteria.

The legislative materials, though, do address the applicable date. Regarding initial applicability, 2009 Wis. Act 28, Sec. 9309(1), provides that,“The treatment of section 973.015 (1) (a) and (c) of the statutes first applies tosentencing ordersthat occur on the effective date of this subsection." This section, though, does not limit the court’s ability to order expungement if the defendant is otherwise eligible, and it is appropriate.

Where the language of the statute is unambiguous, the courts do not refer to legislative materials. In the case of the new expungement law, the statute is not ambiguous as to the date of its applicability. Thus, the court need not even consider the language of the bill.

Secondly, even if the court chooses to consider the legislative materials, the language of the bill does not limit the applicability of the expungement statute based upon date of offense, which would be a jurisdictional limitation. Rather, the bill limits it by date ofsentencing order.# Here, Spang was sentenced to probation, and it is well-recognized that probation is not a sentence (or a sentencing order). As the Court of Appeals explained inState v. Fearing, 2000 WI App 229 (Wis. Ct. App. 2000):

[P]robation is not considered a sentence, and the imposition of incarceration as a condition of probation is likewise not a sentence.See Horn, 226 Wis. 2d at 647;Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974). While "sentence" may also be used in a more general sense, to include probation, it "is a legal term and should be given its legal meaning when used in the statutes and the law unless there are strong indications the term was used in a general sense."Prue, 63 Wis. 2d at 116.See also State v. Mentzel,218 Wis. 2d 734, 740, 581 N.W.2d 581 (Ct. App. 1998) (meaning of the term "sentence" depends on the particular statute involved and the setting to which the statute applies).

Thus, where the defendant has been placed on probation, especially with a withheld sentence, the court is free to make a sentencing order at this time that includes expungement if appropriate.

Finally, even if the court considers the use of the phrase “sentencing order" in 2009 Act 28 Sec. 9309 in its broader sense, to include probation, the court has continuing jurisdiction to modify a “sentencing order" if there is a new factor. For example, inState v. Franklin, 148 Wis. 2d 1 (Wis. 1989), the Supreme Court recognized that a change in parole policy could be a new sentencing factor. The Supreme Court wrote:

Sentence modification involves a two-step process in Wisconsin. First, the defendant must demonstrate that there is a new factor justifying a motion to modify a sentence.State v. Hegwood,113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983). A new factor, as defined inRosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), is "a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties." Whether a fact or set of facts constitutes a new factor is a question of law which may be decided without deference to the lower court's determinations. Hegwood, 113 Wis. 2d at 547

Other courts have applied the statute in this manner. For example, in an unpublished opinion cited for its persuasive value pursuant to Sec. 809.23(3)b), Stats., the Court of Appeals approved of a 2009 order the Dane County Circuit Court granting expungement of a municipal ordinance violation, where the date of conviction was in the year 2000. The court wrote

The June 30, 2009 amendment to WIS. STAT. § 973.015, in addition to enlarging the maximum period of imprisonment a violation may have in order to be eligible for expungement, eliminated the term "Misdemeanors" from the name of the statute. Absent that term, there is nothing in the plain language of § 973.015 limiting its application to only misdemeanor offenses.See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, P45, 271 Wis. 2d 633, 681 N.W.2d 110 ("statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'"). We therefore conclude that following the effective date of the amendment to the statute, § 973.015 applies not only to misdemeanors, but also to forfeitures.

Melody P.M. requested the expungement of her civil conviction on July 30, 2009, approximately thirty days after the effective date of the amendment to WIS. STAT. § 973.015. Because on that date § 973.015 applied to misdemeanors as well as forfeitures, the circuit court was permitted to expunge Melody P.M.'s conviction. We therefore affirm the order of the court expunging Melody P.M.'s 2000 conviction for violation of DANE COUNTY ORDINANCE § 32.03.

State v. Melody P. M., 2010 WI App 100 (Wis. Ct. App. 2010) (unpublished).

Thanks to Jeff Jensen

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