Filed: Feb. 27, 2015
Latest Update: Feb. 27, 2015
Summary: NOT TO BE PUBLISHED OPINION NICKELL , Judge . The Commonwealth of Kentucky appeals from the January 17, 2014, order of expungement entered by the Jefferson Circuit Court. We reverse and remand for additional findings. Larry Broadus was indicted in 2000 for one count each of first-degree criminal mischief, unauthorized use of a motor vehicle, and theft by unlawful taking under $300.00. Broadus pled guilty to amended charges of second-degree criminal mischief and unauthorized use of a motor
Summary: NOT TO BE PUBLISHED OPINION NICKELL , Judge . The Commonwealth of Kentucky appeals from the January 17, 2014, order of expungement entered by the Jefferson Circuit Court. We reverse and remand for additional findings. Larry Broadus was indicted in 2000 for one count each of first-degree criminal mischief, unauthorized use of a motor vehicle, and theft by unlawful taking under $300.00. Broadus pled guilty to amended charges of second-degree criminal mischief and unauthorized use of a motor ..
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NOT TO BE PUBLISHED
OPINION
NICKELL, Judge.
The Commonwealth of Kentucky appeals from the January 17, 2014, order of expungement entered by the Jefferson Circuit Court. We reverse and remand for additional findings.
Larry Broadus was indicted in 2000 for one count each of first-degree criminal mischief, unauthorized use of a motor vehicle, and theft by unlawful taking under $300.00. Broadus pled guilty to amended charges of second-degree criminal mischief and unauthorized use of a motor vehicle. On June 1, 2001, Broadus was sentenced to twelve months on each count, conditionally discharged for two years. On December 16, 2013, Broadus moved for expungement of the convictions. The Commonwealth objected and argued Broadus's subsequent misdemeanor conviction for theft by unlawful taking under $300.00 in Jefferson District Court case 06-M-016909 made him ineligible for expungement. On January 17, 2014, the trial court granted Broadus's motion and ordered all underlying records be expunged. This appeal followed.
The Commonwealth's sole argument on appeal is that the trial court's order of expungement is infirm because Broadus was not statutorily eligible for expungement. Broadus has not filed a brief in response. After careful review, we reverse and remand for additional findings.
Second-degree criminal mischief1 and unauthorized use of a motor vehicle2 are both misdemeanor violations, the expungement of which is governed by KRS 431.078. KRS 431.078 mandates expungement if, following a hearing, the trial court makes the following findings:
(a) The offense was not a sex offense or an offense committed against a child;
(b) The person had no previous felony conviction;
(c) The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged:
(d) The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;
(e) No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against him; and
(f) The offense was an offense against the Commonwealth of Kentucky.
KRS 431.078(4) (emphasis added).
Here, the trial court failed to make any of the statutorily required findings. Moreover, evidence introduced by the Commonwealth indicated Broadus was ineligible based upon a subsequent conviction of theft by deception under $300.00. Accordingly, because the trial court's order appears to have been made outside the authority granted by KRS 431.078, we hold it was made in error and, therefore, reverse and remand for additional findings. Should the trial court make the necessary statutory findings which support an expungement, then it shall grant Broadus's motion. If, however, the trial court is unable to make the statutorily required findings, Broadus's motion shall be denied. KRS 431.078.
For the foregoing reasons, the January 17, 2014, order of expungement of the Jefferson Circuit Court is reversed and remanded for additional proceedings consistent with this Opinion.
ALL CONCUR.
