TITLE FIVE — EXPUNGEMENT PROCEEDINGS
Rule 38. Expungement; Sealing
Decision. The court may come to a decision after fulfilling all the requirements needed for the class of expungement. The court may expunge the records of the petitioner, expunge the records upon condition where Rule 38(4) permits, or deny the expungement of records.
Form of the Order. An order entered under this rule shall state:
The username of the petitioner and the case number of the expungement matter;
The class of the petition as the court has determined it;
Each record expunged, identified as Rule 36(8)(c) requires;
Each record for which expungement is denied, and the reason for the denial;
Where the expungement is conditional, the condition, the program assigned, and the period of the program; and
Whether a denial is with or without prejudice.
Expungement; How Issued. All expungements shall be issued by a judge, justice, or magistrate accessing the expungement program and selecting the specific records to be dismissed from the public record. The order is entered upon the docket of the expungement matter through the judicial route, and the docket of that matter is public.
Same; Conditionality.
The court may offer a conditional expungement to the petitioner as authorized by law during specific classes of expungement. A conditional expungement is available upon a petition of Class II and Class III only, as 6 R. Stat. § 131.602 provides, and shall not be offered upon a petition of Class I, upon a petition for infraction expungement, upon a petition to expunge a conviction, or upon an expungement issued under Rule 38.2.
The court may suggest that the petitioner serve in a community service program for a reasonable period of time. The court shall not assign a community service program to exceed a period of thirty (30) days, and may direct that the program be one approved by the Department of Corrections.
Upon completion of the community service program without any additional arrests, the court must expunge the records noted for expungement within the petition.
The petitioner shall report the completion of the program to the court through the expungement route. The court may require a statement from the entity administering the program.
Where the petitioner fails to complete the program within the period assigned, or is arrested during that period, the condition fails and the court shall deny the petition. A denial under this subdivision is without prejudice.
Effect of an Expungement. An expungement dismisses from the public record the specific records selected in the expungement program. An expunged record is not an arrest-based criminal record or a conviction-based criminal record for the purpose of determining eligibility under Rule 36 upon a subsequent petition.
What an Expungement Does Not Do. An expungement:
Does not vacate a conviction, an adjudication of guilt, a finding of guilty, or a sentence;
Does not restore any right of citizenship, which is restored only upon executive clemency as Rule 38.1 provides;
Does not remove the expungement matter, its petition, its documents, or its disposition from the public docket, that matter being public record under Rule 36(4);
Does not remove, seal, redact, restrict, or alter any filing, document, or docket entry of the electronic filing system in any case. There is no document-level sealing and no redaction in any case that is not of a restricted type, as Rule 32(14) provides. An expungement operates upon the criminal history record maintained in the expungement program and upon nothing else; and
Does not abate a pending prosecution or a pending proceeding.
“Sealing” Defined. As used in this Title, to “seal” a record means to cause that record to be dismissed from the public record through the expungement program in the manner Rule 38(3) prescribes, and means nothing else. No other sealing of any record, document, or filing exists, and no order purporting to effect one shall issue.
Denial. A denial of a petition is without prejudice unless the order states otherwise. The order shall state the reason for the denial and, where the denial rests upon an unexpired period, the date upon which that period expires.
Notice; Recording.
The court shall cause notice of the order to be given to the petitioner and to the attorney for the government.
The clerk shall record the order as 3 R. Stat. § 131.102 requires.
Where the order expunges a conviction-based criminal record, the clerk shall transmit notice of the order to the State Recorder, who maintains the archive of all persons convicted in a court of law, the crime of which they were convicted, and their sentence, under 2 R. Stat. § 222.301(f).
Correction. Clerical mistakes in an order entered under this rule may be corrected as Rule 42 provides. Where records were selected in the expungement program in error, the court upon motion or upon its own initiative shall enter a corrected order identifying the records affected and shall cause the program to be corrected.
Appeal. A final order granting or denying a petition for expungement may be appealed to the Supreme Court, which exercises appellate jurisdiction in all cases, criminal and civil, under Const. art. V, § 3, within the time and in the manner prescribed by the Ridgeway Rules of the Supreme Court. Rule 35(8) and Rule 35(9) govern the notice of appeal and the record so far as they may be applied.