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Expunction, § 973.015 — Application to Prosecutor and Law Enforcement Records

State v. Anthony J. Leitner2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207
For Leitner: Jefren Olsen, SPD, Madison Appellate

Issue: Whether the expunction statute, § 973.015, requires prosecutors and law enforcement agencies to expunge their records documenting the facts underlying an expunged conviction.

Holding:

¶38. Although the Wisconsin legislature has not explicitly set forth the purpose of Wis. Stat. § 973.015, we agree with the defendant and the State that § 973.015 was enacted as a companion to the Wisconsin Youthful Offenders Act and that both statutes were intended to provide a break to young offenders who demonstrate the ability to comply with the law. As the court of appeals in Anderson stated, § 973.015 “provides a means by which trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions.” But nothing in the language or history of § 973.015 indicates that the legislature intended record expunction under § 973.015 to wipe away all information relating to an expunged record of a conviction or to shield a misdemeanant from all of the future consequences of the facts underlying a record of a conviction expunged under § 973.015.

¶39. We conclude that the purpose of Wis. Stat. § 973.015 is accomplished by interpreting the statute to refer only to court records. Expunction of a court record of a conviction enables an offender to have a clean start so far as the prior conviction is concerned. As the State points out, expunging the court record provides substantial advantages to the offender: An expunged record of a conviction cannot be considered at a subsequent sentencing; an expunged record of a conviction cannot be used for impeachment at trial under § 906.09(1); and an expunged record of a conviction is not available for repeater sentence enhancement.

For discussion of the inherent, equitable power of the federal court to order expunction – an extremely narrow power, to be sure – see U.S. v. Flowers, 389 F.3d 737 (7th Cir. 2004); U.S. v. Rowlands, 3rd Cir No. 05-3425, 6/9/06. But note split in authority as to whether federal court possesses ancillary jurisdiction to order expungement, U.S. v. Coloian, 1st Cir No. 06-1357, 3/20/07.

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