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Sentencing — expunction

By: WISCONSIN LAW JOURNAL STAFF//May 1, 2013//

Sentencing — expunction

By: WISCONSIN LAW JOURNAL STAFF//May 1, 2013//

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Wisconsin Court of Appeals

Criminal

Sentencing — expunction

A decision on expunction must be made at the time of sentencing.

“Matasek is correct that WIS. STAT. § 973.015(1)(a) grants a court discretion to determine whether a defendant’s conviction should be expunged. See, e.g., State v. Cesar G., 2004 WI 61, ¶12, 272 Wis. 2d 22, 682 N.W.2d 1 (concluding the word ‘may’ in a statute granted the circuit court discretion); Rotfeld v. DNR, 147 Wis. 2d 720, 726, 434 N.W.2d 617 (Ct. App. 1988) (The word ‘may’ in a statute generally allows for the exercise of discretion, as opposed to the word ‘shall,’ which indicates mandatory action.). However, contrary to Matasek’s assertion, that the legislature granted courts discretion to determine whether to order expunction does not mean the legislature also granted courts discretion to decide when to make that determination. Instead, the statute plainly and unambiguously directs courts to exercise their discretion in ordering expunction ‘at the time of sentencing[.]’ See WIS. STAT. § 973.015(1)(a). If the legislature had intended the meaning Matasek urges, it could have instead written that a court may order expunction at the time of sentencing or after successful completion of the defendant’s sentence. Because the legislature did not include the underlined language, accepting Matasek’s interpretation would require us to add words to the statutory text. We may not read language into the text of an unambiguous statute. See Cavey v. Walrath, 229 Wis. 2d 105, 111, 598 N.W.2d 240 (Ct. App. 1999). Alternatively, the legislature could have simply omitted the phrase ‘at the time of sentencing.’ Matasek’s interpretation, however, would impermissibly render that language mere surplusage. See Kalal, 271 Wis. 2d 633, ¶46 (A court must seek to avoid surplusage by giving effect to every word in a statute.).”

Affirmed.

Recommended for publication in the official reports.

2012AP1582-CR State v. Matasek

Dist. III, Ozaukee County, Wolfgram, J., Cane, J.

Attorneys: For Appellant: Guerard, Jeffrey J., Milwaukee; For Respondent: Gerol, Adam Y., Port Washington; Remington, Christine A., Madison

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