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How to Expunge a Revoked Probation

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by: Abassos • November 28, 2010 • no comments

ORS 137.225(1)(a) describes the scope of people who may apply for an expungement of their conviction as "any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5)". This would seem to imply that, in order to qualify for expungement, a defendant who was put on probation has to have fully complied with the probation. In fact, this is exactly what I advised clients at the MPD expungement clinic for years. We would still submit a petition for expungement if there were a couple violations but not if there were a bunch of violations and certainly not if the probation was revoked. I mean, how could you simultaneously have fully complied with the sentence and also mucked it up so bad that a judge found there was no point in continuing probation? It turns out I was wrong. We all were.

In 2008, the appellate court, in State v. Branam, said that the sentence with which a defendant has to fully comply is the final sentence of the court. For a revoked probation, the final sentence is the jail sentence and PPS term. If the defendant completed his jail sentence and his term of post prison supervision then he has fully complied with and performed the sentence of the court.

So that's the trick for how to expunge a revoked probation. You just do it and you cite to State v. Branam, 220 Or App 255 (2008).

Here's the open question: what about a person who badly screws up their probation but not enough to get revoked? First, there is an excellent argument that just as the revocation sentence is the most recent sentence, so is the modified and continued probation sentence that results from a probation hearing. So long as the defendant completed the final sentence of the court, he qualifies. Second, the primary line of reasoning for the Branam court was that it would be absurd for a person put on probation to be disqualified from expungement because probation turned into prison while an immediate sentence of prison on the same charge (for a presumably worse case or defendant) would be eligible. It doesn't take much to extend that logic one more step down. It would be absurd for a person who was violated and continued on probation to be ineligible while a person who was revoked off probation would be eligible. Both the logic and the law of Branam would point toward eligibility for both the revoked probationer and the very bad but ultimately successfully completed probationer.

Note that there is still a way for a judge to deny a person who is otherwise eligible for an expungement. The judge has one finding that isn't essentially automatic: "if the court determines that the circumstances and behavior of the applicant from the date of conviction. . . warrant setting aside the conviction. . . it shall enter an appropriate order." In other words, the judge can simply find that the defendant's behavior doesn't warrant an expungement. Case law limits the scope of that inquiry into genuinely illegal behavior. State v. Langan. And the statute limits the inquiry to the time since conviction. However, a judge could find that probation violations that occurred after the date of conviction constituted such significant violations of the law that the circumstances do not warrant setting aside the conviction. Obviously the more time the defendant is free of criminal justice involvement the more difficult it will be for a judge to make that finding.

In any case, don't think that just because your client did very poorly on probation that he or she is ineligible for expungement.