Vacating Subsequent Convictions in Washington


State v. Smith
Court of Appeals of Washington
September 7, 2010

Holding: The Court of Appeals of Washington held that the defendant’s vacated misdemeanor conviction in 1995 did not disqualify him from obtaining an order to vacate his 1989 felony conviction because the 1995 conviction did not count as a subsequent conviction.

Why This Case is Important: RCW 9.94A.640 allows a person to request an order to vacate felony convictions. RCW 9.94A.640(2)(d) limits this by only allowing the request if the petitioner was not convicted of any new crimes in the state, another state, or federal court since the date of the petitioner’s discharge.

Additionally, RCW 9.96.060(3) states that once a court vacates a record of conviction, the person will be released from all disabilities following the offense and the fact that the person was convicted of the offense will not be mentioned in their criminal history. Thus, if a person had a conviction vacated in the past and currently seeks to have an older conviction vacated, he would not be ineligible under RCW 9.94A.640(2)(d) on the basis of that previously vacated conviction because such a conviction would not have weight due to RCW 9.96.060(3).

Facts of This Case: In 1989, the defendant pleaded guilty to second-degree burglary, a felony in the state. He was sentenced to 208 hours of community service and 12 months of community supervision. In 1990, defendant completed the conditions placed on him and requested the court to discharge his burglary conviction, which was granted by the court.

In 1995, defendant pleaded guilty to a third degree burglary charge, which was a gross misdemeanor. Defendant was sentenced to 72 hours of community service and 12 months of probation. In 2009, defendant requested his 1995 conviction to be vacated. The court granted the request. Defendant then requested that his 1989 conviction be vacated, which the state opposed, arguing that defendant’s 1995 conviction made him ineligible for his current request, even though the 1995 conviction had been vacated. The court granted defendant’s request to vacate regardless of the state’s argument and the state appealed.

The state argued that because defendant was convicted in 1995, he is ineligible under RCW 9.94A.640(2)(d). The Court of Appeals of Washington disagreed with the state’s argument. The Court examined RCW 9.96.060(3), which states that once a court vacates a record of conviction, that person is released from all consequences of having such offense on their record and fact that the person was convicted may not be mentioned in their criminal history. The Court held that it was the legislature’s intent to have a person’s conviction completely erased if a court vacated the conviction. It further reasoned that if it was intended for a vacated conviction to be considered when a person later requested to vacate a different conviction under RCW 9.94A.640, the legislature would have included language to support such an interpretation.

Therefore, the district court was correct in granting defendant his request to vacate the 1989 conviction because the 1995 conviction did not count against the defendant.

Key Language: Under RCW 9.96.060(3), if a court vacates a person’s conviction for a particular offense, that offense cannot be used to hold that person ineligible to vacate a felony conviction under RCW 9.94A.640(2)(d). The legislature intended to have all traces of the conviction erased if a court grants the request to vacate it. Therefore, any vacated conviction cannot be used against the person when he later requests to vacate an older felony conviction.

Expert Advise: “In Washington, if a person has had a conviction vacated by the court. That conviction may not be used against the person when that person requests the court to vacate a felony conviction pursuant to RCW 9.94A.640. Under the laws of Washington this reasoning only applies when an individual is trying to vacate a felony conviction.” -Attorney Mathew Higbee.

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