State v. Chambers

533 P.2d 876, 1975 Utah LEXIS 662

• Court: Utah Supreme Court
• Decided: March 24, 1975
• Docket: 13845
• Status: Published

Opinions

MAUGHAN, Justice:

This matter comes to us as an appeal from an order of the trial court expunging defendant’s criminal record, and denying the State’s motion for a stay of that order. The trial court proceeded under the provisions of Section 77-35-17, U.C.A.1953, as amended.

Defendant entered a plea of guilty to two charges of felony, viz., making a profit of public money and of misusing public funds. Upon motion of the prosecuting attorney eight other charges were dismissed. The court then sentenced defendant to two indeterminate terms in the state penitentiary, the sentences to run concurrently. The execution of the sentences was suspended, and defendant was placed on probation, one of the terms of which was that he serve one year in the county jail. After serving four months, the sentencing judge modified the terms of the probation by terminating defendant’s sentence, and on the twenty-first day of August 1972 placed defendant on probation, under the supervision of the Department of Adult Probation and Parole. Thereafter, on October 9, 1973, pursuant to an affidavit of an official of the Adult Probation and Parole Department stating that defendant had successfully completed his probation, defendant was discharged therefrom.

On July 8, 1974, the trial court expunged defendant’s record. The prosecutor opposed the expungement, and later moved the court to stay its order for five years so as to comply with the provisions of Section 77-3S-17.5, U.C.A.1953, as amended L.1973, Chapter 198, Section 1; this motion was denied.

The State raises three points on appeal; the first two may be combined, they are: (1) that the provisions of 77-35-17.5 were applicable and should have been applied; (2) that the expungement order was not compatible with the public interest. Defendant countered by claiming that the provisions of 77-35-17 were applicable, and by challenging the State’s right to appeal.

These two statutes are mutually exclusive. Section 77-35-17.5 does not purport to amend or repeal 77-35-17. It is apparent that each deals with a different situation.

Section 77-35-17 (L.1923, Chapter 74, as amended by L.1943, Chapter 24) could be called the Court’s Statute, for it comes into operation on the court’s own motion or that of the prosecutor. The court could move on its own motion to expunge, and did so pursuant to 77-35-17, as set forth in its order. Section 77-35-17.5 could be called the Any Person Statute, for it comes into operation on the motion of any person who can find definition within its terms.

The record shows a confusion of both statutes in the initiation of this matter; this is carried into the court’s order, and is not properly a part of the authority granted under 77-35-17. Proceeding under this statute the court cannot seal the record, restrict its inspection, nor bring into operation circumstances which would allow a response to inquiries relating to a conviction of crime, as though such conviction had never occurred. The court can terminate the sentence, set aside a defendant’s plea of guilty, the conviction,. dismiss the action, and discharge the defendant. The court can also direct that copies of its order be dispatched to appropriate agencies —this the court can do in aid of its order, that it may have its intended effect.

The word “expunge” properly describes a physical act, not a legal one.¹ However, in relation to 77-35-17, it has become fastened in our law by decision and practice as descriptive of what the court can do under that statute. In this sense it is expressive of cancel, revoke, set aside.

Some argument, in the briefs, is made concerning whether the subject action of the court comes to a defendant as a matter of right or of grace. Probation and expungement of one’s record are neither matters of right nor of grace, but can only be granted when they appear to be compatible with the public interest.² The Zolantakis case referred only to suspension of sentence and probation, as then provided under Chapter 74, L.1923. In 1943, the legislature added the last sentence to what is now our 77-35-17, providing for an ex-pungement of one’s record “if it be compatible with the public interest.” This court, subsequently addressed itself to that ultimate sentence, and said it was “for the purpose of permitting the court under unusual circumstances and for good cause to expunge the record of crime.” ³

In the exercise of these broad discretionary powers, which are clearly allowed to encourage reformation of wrongdoers,⁴ the court must consider a great many intangibles, such as: the character and personality traits of the defendant, his attitude, his prior record, his performance under probation, and whether he has acquitted himself well in accepting the duties his society requires. If this discretion is reasonably used, and is not shown to have been abused, arbitrary, or capricious, the judgment of the trial court should not be disturbed.⁵ There is no showing here that the trial court did not properly consider the necessary conditions precedent to expungement prior to its order.

The State claims, in its third point, that the action of the trial court was not compatible with the public interest, and in support thereof says that such interest is not served in cleansing, so rapidly, the record of the criminal acts here involved. We are certainly not unmindful of the seriousness of crimes, which have as their gravamen the failure to honor a public trust. However, we cannot support the State's claim, in this instance, as a general proposition, because of the discretionary function of the trial court, and because the trial court’s performance has not been shown to have exceeded its discretionary boundaries. The trial court proceeded pursuant to statute, and from the record presented, we conclude, could have reasonably found the expungement to be in the public interest. No evidence has been adduced to show the interest of the State to have been ill served.

The trial court is affirmed, except as to those parts of its order not in consonance with this opinion, and as to them, the matter is remanded with instructions to render an order reflecting the directions herein. No costs awarded.

ELLETT and TUCKETT, JJ., concur.

1 . Andrews v. Police Court of City of Stockton, Cal.App., 123 P.2d 128, 129.

2 . State v. Zolantakis, 70 Utah 296, 259 P. 1044 (1927).

3 .State v. Schreiber, 121 Utah 653, 245 P.2d 222 (1952).

4 . Williams v. Harris, 106 Utah 387, 149 P. 2d 640 (1944).

5 . Williams v. Harris, Ibid.; State v. Sibert, 6 Utah 2d 198, 310 P.2d 388 (1957).