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  • WisBar News
    December 18, 2014

    Wisconsin Supreme Court Sides With Young Defendant in Expungement Case

    Joe Forward
    Legal Writer

    Dec. 18, 2014 – The Wisconsin Supreme Court has ruled that Kearney Hemp’s criminal conviction should have been expunged automatically once he completed the conditions of his probation and he was not required to take additional steps to clear his record.

    Under Wis. Stat. section 973.015, persons who commit crimes with a maximum imprisonment penalty of six years or less can have their records expunged if the crime was committed when they were under the age of 25.

    Under that provision, “the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.”

    The law says that when a person successfully completes the sentence, “the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.”

    In 2009, Hemp was under age 25 when we pleaded guilty to possession THC with intent to distribute. The sentencing judge ordered jail time and an 18-month probation period, and also ordered expungement upon successful completion of probation conditions.

    Hemp successfully completed the conditions of his probation, and the Department of Corrections issued a certificate of discharge to the circuit court in Milwaukee County in 2011. However, nearly a year passed before Hemp's lawyer affirmatively filed a petition for expungement. By that time, Hemp had incurred criminal charges in another county.

    Thus, the circuit court denied Hemp’s request for expungement. Hemp appealed, arguing that the expungement should have been automatic once the certificate of discharge was issued to the court. The appeals court rejected Hemp’s argument.

    A three-judge appeals court majority (2-1) ruled that Hemp was required to petition the circuit court for expungement once the conditions of his probation were satisfied.

    In State v. Hemp, 2014 WI 129 (Dec. 18, 2014), the Wisconsin Supreme Court unanimously reversed, concluding that Hemp’s expungement should have been automatic once the discharge certificate was issued. Nothing more was required.

    “[W]e hold that the successful completion of the probation automatically entitled Hemp to expungement,” wrote Justice Michael Gableman for the unanimous court.

    The court also held that section 973.015 did not place any burden on Hemp to petition for expungement within a certain period of time because the “detaining or probationary authority” has the duty to send the certificate of discharge to the circuit court.

    “[T]he detaining or probationary authority must forward the certificate of discharge to the court of record upon the individual defendant’s successful completion of his sentence and at that point the process of expungement is self-executing,” Gableman wrote.

    Finally, the court held that the circuit court that heard Hemp’s expungement petition did not have the discretion to deny it because the sentencing court already ordered expungement upon successful completion of the sentence.

    “Nothing in the expungement statute grants the circuit court the authority to revisit an expungement decision,” Justice Gableman wrote for the unanimous court.

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