IF I DID A DIVERSION FOR A CRIME THAT IS NOT ELIGIBLE FOR AN EXPUNGEMENT IF CONVICTED CAN I STILL GET IT EXPUNGED?

Knowing the law isn’t as easy as it appears to be. Every time a legal case occurs the law can potentially change. To truly understand the law on any given subject you must know how it has been applied in your particular circumstances. The past interpretation of the law by a court is called “case law”. This short video explains how case law works: The case below answers the specific question below in straightforward language. If you need straightforward answers to your legal questions, feel free to contact our office for a free consultation.

STATE V. LYTLE, NO. 105,722, 2011 WL 6385652 AT *1 (KAN. CT. APP. 2011).

This case addresses the following issue:

If I Did A Diversion For A Crime That Is Not Eligible For An Expungement If Convicted Can I Still Get It Expunged?

This case explored the issue of whether an individual who completed diversion for a crime that was not eligible for an expungement if convicted could still get it expunged. In exploring this issue, the court noted that an individual was not convicted of a crime when he or she entered into a diversion agreement. Id. at 4. Further, the court held that an individual could get the diversion agreement expunged after three or more years had passed since completion of the diversion agreement. Id. at 3.

On October 9, 1985, the State charged the defendant with one count of aggravated incest and the defendant entered into a 2-year diversion agreement (complete a diversion program instead of going to jail). Id. at 1. On July 22, 2010, the defendant asked the district court for expungement (remove criminal record) of his 1985 diversion for one count of aggravated incest. Id. On July 23, 2010, court services filed an expungement notice notifying the defendant that he did not meet all the criteria necessary for expungement because the 2010 Kansas expungement statute included aggravated incest as an offense that could not be expunged. Id. However, despite the court services notification, the district court granted the defendant an expungement after finding that the 1985 Kansas expungement statute did not include aggravated incest as an offense that could not be expunged. Id. Essentially, at the time the offense was committed, a defendant could get an aggravated incest offense expunged. Id. Nevertheless, the district court changed their minds and decided not to grant the defendant an expungement after reviewing an old Kansas case. Id. As a result, the defendant appealed the district court’s decision and the Kansas Court of Appeals heard the case. Id.

The case the district court used to change their minds stated, “The statute in effect at charging and dismissal did not authorize expungement for diversion agreements . . . nowhere in the statute was there any reference to the expungement of anything other than records of conviction.” Id. Because the defendant entered into a diversion agreement, he was not actually convicted of aggravated incest. Id. According to the court, “A person could not be convicted of the same crime that was the subject of a successful diversion agreement entered into with the State. When a person was charged with a crime and subsequently entered into a diversion agreement and successfully completed the diversion, the criminal charge was dismissed.” Id. at 3. So, the district court’s final decision had nothing to do with the aggravated incest offense. Id. at 1. Rather, it had to do with the fact that the defendant entered into a diversion agreement and the 1985 Kansas expungement statute did not allow for the expungement of diversion agreements. Id.

In 1998, the Kansas legislature passed a bill which changed the Kansas expungement statute and allowed for the expungement of a diversion agreement. Id. at 3. According to the altered statute, an individual could petition for expungement if 3 or more years had lapsed since successfully fulfilling the terms of a diversion agreement (there were a few offenses that required a 5-year waiting period). Id. Therefore, the question became which form of the statute should the court use—the old statute that did not allow for expungement or the altered statute which allowed for expungement. Id. After review, the court decided to use the new statute and held that the district court was wrong in denying expungement of the defendant’s diversion agreement. Id. at 5-6.

In sum, even though the Kansas expungement state identified aggravated incest as a crime that could not be expunged if convicted, the defendant was not convicted because he entered into a diversion agreement. Therefore, when the statute changed to allow expungement of diversion agreements, the defendant was able to get his criminal record expunged.