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Criminal Procedure — expungement

Wisconsin Court of Appeals


Criminal Procedure — expungement

The defendant pleaded guilty to one count of possession with intent to distributed THC. He sought expungement of an earlier conviction about a year after completing probation and after the new charges were brought.

The plain language of Wis. Stat. § 973.015 (2) clearly states that a defendant is not entitled to expungement of his record unless (1) he successfully completes his sentence; (2) the controlling authority issues a certificate of discharge; and (3) that certificate is forwarded to the circuit court. All three of these steps must be completed before a record will be expunged.

The successful completion of probation was only the defendant’s first step. Therefore, his record was not immediately expunged upon completion of his sentence.

Form CR-266, and all of its requirements, including the attachment of the discharge certificate, are the sole responsibility of the defendant. It logically follows, then, that Wis. Stat. § 973.015 implicitly requires a defendant seeking the benefit of expungement to provide the circuit court with his discharge certificate. As to when a petitioner must forward a certificate of discharge to the circuit court, we agree with the State that the statutory implies immediacy. The defendant did not file for expungement until he had been charged with other offenses. In recognizing the defendant’s ulterior motive and denying expungement, the circuit court properly found defendant’s petition untimely. The circuit court then properly exercised its sentencing discretion by noting the relevance of the defendant’s new criminal charges, which had proceeded through a probable cause finding, and denied his request for expungement.

”The benefit of expungement was not created as a means of manipulating the system.”


Recommended for publication in the official reports.

2013AP1163-CR State v. Hemp

Dist. I, Milwaukee County, Kessler and Brennan, JJ., Curley, J. dissenting

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