State v. Perkins

Judge SCHWARTZMAN,

Specially Concurring:

I am constrained to concur in the opinion of this Court, conditioned upon the continued viability of the Deitz decision and the peculiarities of the “dismissal” of Perkins’ original withheld judgment. While the withheld judgment was technically dismissed by order of the court, that order did not specifically “set aside the plea of guilty” as is provided for under I.C. § 19-2604(1). See Deitz, 120 Idaho at 757, 819 P.2d at 1157. More importantly, this quirky dismissal is based upon a stipulation which provides that the withheld judgment and probation “will be reinstated in the event that the defendant leaves the military early or otherwise violates the terms of this agreement.” In effect, this is not a true dismissal at all.

Were the original plea of guilty set aside and the case fully and finally dismissed pursuant to I.C. § 19-2604(1), thus completing the statutory expungement process, I would vote differently herein. A true expungement would leave no plea of guilty or finding of guilt upon which the Sexual Offender Registration Act could hang its jurisdictional hat. Such is not the case here!