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State v. Kearney Hemp, 2013AP1163, petition for review granted 6/12/14

On review of a published court of appeals decision; case activity

Issues (composed by On Point)

When, pursuant to Wis. Stat. § 973.015, a sentencing court orders the expunction of a defendant’s record upon successful completion of his sentence, does expunction occur automatically upon the circuit court clerk’s receipt of the defendant’s certificate of discharge or must the defendant file a petition for expunction?

If the defendant must petition the circuit court for expunction, then: (a) is there a deadline by which he must file it, and (b) who is required to forward the certificate of discharge to the circuit court—the defendant or the Department of Corrections (or other detaining authority)?

If a defendant successfully completes his sentence or probation, thereby earning expunction, may the circuit court revoke the grant of expunction based upon the defendant’s post-discharge conduct?

When SCOW closes a door, it opens a window. Okay, that’s a gross overstatement, but in this case it may be true. A few weeks ago, SCOW ruled against the defense in State v. Andrew Matasek, 2014 WI 27, and held that a circuit court must decide whether to grant or deny expunction at the time of sentencing. The circuit court cannot take a “wait and see” approach. See the On Point post here. Hemp’s case offers SCOW an opportunity to explain the mechanics of expunction. Who must initiate the process? How and when do they do that? The court of appeals’ majority opinion in Hemp bungled the answers to these questions by overlooking some significant authorities—like, for example § 973.09(5) and DOC § 328.16(2)(c), which require the DOC, not the offender, to send the paperwork to the court when a period of probation expires. See the On Point analysis of Hemp here. Remember, to qualify for expunction under § 973.015, a person must be under 25 at the time of the offense. The SPD can’t appoint counsel for an expunction petition, so shifting all of the obligations from the DOC and the court clerk to the pro se, indigent 19 or 20 year-old is a 7 0r 8 on the expunction Richter scale. Let’s hope SCOW stabilizes the situation properly.

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{ 1 comment… add one }
  • Randy June 19, 2014, 8:40 am

    Please refer to the DCC Operations Manual on the DOC Website, under Community Resources / Probation and Parole. Accordrding to Chapter 06.26.04 the agent of record, within 10 days of discharge, is to complete and forward to the court a form DOC0-2678, Verification of Satisfaction of Probation Conditions for Expunction. The offender is to be encouraged also, to follow up with the Clerk of Court, to ensure that his/her expunction has been fully processed.

    Also, per Chapter 06.35.03, upon discharge felon offenders receive an official discharge certificate, with the Department Secretary’s signature, while misdemeanant offenders simply receive a computer generated Notice of Case Status Change, indicating discharge.

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