Criminal: CLEMENTS V. COM. (8/4/2006 COA)

CRIMINAL:  Felony Expungment

In 1998, the General Assembly enacted KRS 533.250 through KRS 533.262 which established pretrial diversion and set forth the criteria and procedure for its use. Pretrial diversion allows an individual charged with certain Class D felonies and who meets certain statutory criteria to enter a guilty plea and be placed in a pretrial diversion program. If the individual successfully completes pretrial diversion, then his felony charge will be "dismissed-diverted". In essence, the record of the individual’s felony conviction is expunged.

KRS 533.250 does not apply to Clements since he pled guilty well before the statute was enacted and because the General Assembly did not make the statutes establishing pretrial diversion retroactive. CA rejected notion that circuit courts have the inherent power to expunge felony convictions since, in this Commonwealth, circuit courts only have the power to expunge certain criminal charges that have been dismissed and certain misdemeanor convictions. This power is derived from two statutes, KRS 431.076 and KRS 431.078. Neither statute applies to Clements. Circuit court properly ruled that it lacked the authority to expunge Clements’ felony conviction.

Scott Byrd, Editor

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