State v. Young ( 1976 )

SCHWAB, C. J.

The state appeals from a circuit court order, issued pursuant to ORS 137.225, expunging respondent’s 1968 grand larceny conviction.

The threshold question is whether the state is entitled to appeal the expunction order.

The state contends its appeal is authorized by ORS 19.010(4), which provides:

"An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding.”

Respondent contends that this expunction proceeding is, instead, criminal in nature and subject to the appellate-jurisdiction rules of ORS ch 138. Respondent then relies on State v. Beal, 19 Or App 343, 527 P2d 262 (1974), in which we held the state could not appeal a similar order by virtue of certain provisions of the criminal procedure code, specifically, ORS 138.060(3) and (4).

The preliminary provisions of ORS ch 138 state that the specific provisions that follow apply to " criminal action[s].” ORS 138.010, 138.020. (Emphasis supplied.) The legislature has defined a criminal action as "an action at law by means of which a person is accused and tried for the commission of an offense.” ORS 131.005(6). This expunction proceeding is not a criminal action within that definition and thus is not subject to the rules stated in ORS ch 138.

Instead, expunction proceedings seem to fit very comfortably within the concept of special statutory proceedings, with appellate jurisdiction governed by ORS 19.010(4). See, Tax Com. v. Consumers’ Heating Co., 207 Or 93, 294 P2d 887 (1956). We hold we have jurisdiction over the state’s appeal.

The substantive question is whether the statute governing expunction, ORS 137.225, authorizes the expunction of the respondent’s conviction. The statute allows that form of relief to defendants "convicted of a Class C felony * * * or a crime punishable as either a felony or a misdemeanor.” Respondent’s 1968 grand larceny conviction under former ORS 164.310 is not for a Class C felony, there being no such thing in existence at that time. Nor did former ORS 164.310 authorize punishment as either a felony or a misdemeanor. ORS 137.225 does not authorize expunction in this situation. State v. Thompson, 20 Or App 61, 530 P2d 532 (1975).

All but one of respondent’s contrary arguments were considered and rejected in Thompson. That additional argument relies on State v. Tippie, 269 Or 661, 525 P2d 1315 (1974), and State v. Grisback, 271 Or 439, 532 P2d 1125 (1974), for the proposition that we should attempt to determine whether respondent’s 1968 crime would be a Class C felony if committed today. The question in Tippie and Grisback was whether to look to prior or present law in determining whether the defendants were guilty of one element of a criminal charge. In both cases, the decision to look to present law was consistent with the general policy of resolving any doubt about the interpretation of statutes defining crimes "in favor of lenity.” State v. Welch, 264 Or 388, 391, 505 P2d 910 (1973).

Here the question is not whether respondent has committed a crime, but whether he is entitled to the collateral procedural relief of expunction, which might be called "unringing the bell.” Unlike the situation in Tippie and Grisback, we do not here perceive any basis for a policy of resolving doubt about legislative intent, if doubt existed, "in favor of lenity.”

Reversed.