APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-09-1130] HONORABLE HEBERT T. WRIGHT, JUDGE
Leslie
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellant.
Short
Law Firm, by: Lee D. Short, for appellee.
SHAWN
A. WOMACK, Associate Justice
The
State of Arkansas appeals the circuit court's order to
expunge Kentara Brown's felony conviction under Act 531
of 1993. The State contends that Brown was ineligible for
expungement under the Act and the circuit court's order
was erroneous as a matter of law. We reverse and remand to
set aside the order to expunge.
I.
Brown
pleaded guilty to Class C felony theft of property in 2009.
See Ark. Code Ann. § 5-36-103 (Repl. 2006). She
was sentenced to three years of probation. The State conceded
that Brown was initially placed on probation under Act 531,
also known as the Community Punishment Act. See Ark.
Code Ann. §§ 16-93-1201 to -1210 (Repl. 2006). The
original judgment and disposition order left unmarked a blank
next to the statement:
"Defendant
committed a target offense and was sentenced under the
Community Punishment [A]ct. Upon successful completion of the
conditions of probation/S.I.S. Defendant shall be eligible to
have [her] records sealed." The conditions of probation,
however, referenced Act 531.
In
2011, the State petitioned to revoke the original order after
Brown failed to comply with the conditions of probation. She
pleaded guilty to the revocation charge. The circuit court
entered a new judgment and disposition order resentencing
Brown to four years of probation for the theft-of-property
conviction. Like the original order, the new order included a
blank next to a statement indicating whether the sentence was
under Act 531 and eligible for expungement. This time, the
circuit court wrote "no" in the blank. The new
conditions of probation likewise omitted any reference to the
Act.
In
2018, Brown petitioned to expunge her conviction under Act
531. The State objected. It argued that revocation of the
original order meant that she failed to successfully complete
probation under the Act. Because the postrevocation order was
explicitly not under Act 531, the State argued Brown was
ineligible for expungement under either order.
The
circuit court granted Brown's petition to expunge her
conviction under Act 531. An order to expunge was
subsequently entered. In the order, the court concluded that
Brown had been sentenced under Act 531 and that she had
"satisfactorily complied" with the court's
orders. It referenced only the original three-year probation
order. The postrevocation order was not mentioned. It is from
this decision that the State appeals.
II.
For its
sole point on appeal, the State contends that the circuit
court erroneously expunged Brown's conviction under Act
531. In short, the State argues that Brown failed to
successfully complete an order of probation under Act 531 and
is thus ineligible for expungement under the Act's
provisions. This argument is twofold. First, the State claims
that Brown did not successfully complete the original
probation order due to its revocation.[1] The State also
contends that the postrevocation probation order was not
under Act 531 and may not be expunged under the Act.
Though
we must typically consider the propriety of the State's
appeal under Arkansas Rule of Appellate Procedure-Criminal 3,
we need not do so here. We have consistently held that an
appeal from an order to seal a conviction, despite its
criminal designation, is civil in nature and not subject to
Rule 3. See State v. ...