Sentencing – Expungement

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Wisconsin Supreme Court

Criminal

Sentencing – Expungement

Section 973.015 places no burden on defendants to petition for expungement within a certain period of time.

“Matasek prohibits a circuit court from re-exercising its discretion under the circumstances of the instant case. Id., ¶43 (‘By deciding expunction at the time of sentencing, a circuit court creates a meaningful incentive for the offender to avoid reoffending.’) (emphasis added). The circuit court here disregarded the statute’s plain language and improperly exercised its discretion by asking for a ‘personal statement,’ giving the State a chance to respond, and ultimately denying expungement. Once the circuit court realized that expungement had not been effectuated, it had the plain duty to see to the completion of the expungement process. Instead, the circuit court asked for a ‘personal statement’ from Hemp and gave the State a chance to respond, neither of which it had the authority to do. Thus, the circuit court incorrectly concluded Hemp’s desire for expungement did not ‘ripen’ until he was charged with a subsequent offense. Hemp always had the desire for expungement because its benefits reach much further than mitigating future offenses. See Leitner, 253 Wis. 2d 449, ¶38. Wisconsin Stat. § 973.015 does not allow for the kind of ‘wait and see’ approach taken by the circuit court here.”

Reversed and Remanded.

2013AP1163-CR State v. Hemp

Gableman, J.

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